vol. 54, no. 8

aclu news

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ORGANIZATION

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SAN FRANCISCO, CA

Volume LIV

December 1990

No. 8

Rights Day Celebration Draws

Record Crowd

ver 1100 ACLU support-

ers rose to their feet and

roared with approval as

Aileen Hernandez, former

national President of NOW,

announced, "I am proud to present

`revolutionary petunias' Del

Martin and Phyllis Lyon with the

Earl Warren Civil Liberties

" Award for doing things no one

ever thought of doing!"

Martin and Lyon, founders of

the Daughters of Bilitis, were hon-

ored with the ACLU-NC's highest

award for their pioneering work

for lesbian and gay rights over the

past four decades. The award was

presented at the ACLU-NC's 18th

annual Bill of Rights Day

Celebration on December 9 at the

St. Francis Hotel in San

Francisco.

The event, emceed by ACLU-

NC . Board Char .H. Lee

Halterman, drew a standing room

only crowd for an exciting eve-

ning of honors, speeches, video,

humor and music. The

Celebration was organized by

Aileen Hernandez (1.) presented the Karl Warren

ward to Del Martin (c.) and Phyllis Lyon

tion effort which keeps the

press and public informed

about crucial civil liberties

issues, and. about our very

effective legislative advocacy

in the state Capitol."

Donna Hitchens, recently

elected to the San Francisco

Superior Court and a former

ACLU-NC attomey, presented

the Lola Hanzel Courageous

Advocacy Award to ACLU-NC

activist Doug Warner, who

died of AIDS in February.

Praising Doug's work as a

Complaint Desk counselor, a

leader of the Gay Rights

Chapter, and an all-round civil

liberties activist, . Hitchens

noted, "Doug did a lifetime of

work in a very short time. He

was a very ambitious person -

he wanted a very different

world than the one he saw, and

he challenged every one of us

all the time," she said.

Doug's award was accepted

by his mother Shirley Warner

who traveled to San Francisco

Field Representative Marcia

Gallo, assisted by Michele Hurtado and.

Craig Harris.

After an opening spoof by Ian Shoales

of Duck's Breath Mystery Theatre who

called for a "Bill of Rights Lite" for. the

90s, ACLU-NC_ Executive Director

Dorothy Ehrlich gave an overview of the

work of the ACLU-NC for the past year.

Ehrlich's presentation was illustrated by a

lively video, produced by Insight

Productions, of TV news clips of ACLU-

NC staff members speaking about issues

ranging from civil rights, to abortion, to

domestic partnerships.

Noting that the legacy of the Reagan

and Deukmejian eras has created a serious

New Rules Limit

Police Spying

n November 14, the San

Francisco Police Commission

unanimously approved a 51-page

packet of policies aimed at curbing intelli-

gence abuses by the San Francisco Police

Department. "These highly-specific provi-

sions will put unprecedented restrictions

on the SFPD's authority to collect intelli-

gence on political activities," said John

Crew, Director of the ACLU-NC Police

Practices Project.

The new policy is the result of six

months of extensive negotiations by a spe-

cial committee appointed by the Police

Commission that included, among others,

representatives from the ACLU-NC, the

`Human Rights Commission, CUAV

(Community United Against Violence),

the Alliance to Stop Abusive Police

(ASAP) and the San Francisco Police

Department. The committee was chaired

by newly-appointed Chief of Police Willis

Casey.

`While these are not perfect policies,

we know of no intelligence policy from

any other major U.S. city that provides

stronger or more comprehensive protec-

tions for First Amendment freedoms,"

Crew said.

Among its key provisions, the policy

will:

- Ban all intelligence gathering aimed

at lawful activity or non-violent civil diso-

bedience;

- Mandate much greater and more

timely public access to SFPD files and

records;

- Require detailed public reports from

the Police Commission annually on the

SFPD's intelligence activities;

- Restrict when, what, and who may

be videotaped at protests;

- Provide for mandatory, surprise

audits of SFPD files;

- Specifically narrow such intelli-

gence activities to include only situations

involving unlawful acts which can reason-

ably be expected to result in death, serious

bodily injury or felony property damage;

- Predicate all such intelligence gath-

ering on the submission of detailed, writ-

ten documentation and prior written

approvals;

- Allow the use of an undercover

technique in these circumstances only as a

last resort, upon a special documented

showing of its necessity and with exhaus-

tive restrictions on its scope and duration.

According to Crew, "Prior to this new

policy, there were no meaningful policy

restrictions on the SFPD's intelligence

practices. The policies will not alone stop

all intelligence abuses. But at least the

extensive provisions will make it much

`more difficult for the department to con-

tinue or to hide these activities in the

- future," he added.

erosion of civil liberties, Ehrlich said, "We

have launched a course of action in which

the ACLU of Northern California does not

stop at legal advocacy in the courtroom.

Rather, our organization as a whole - the

Foundation's legal and public education

programs along with the affiliate's field

and legislative programs - now work in

coordinated, innovative and broad-ranging

ways to repel new dangers to civil liber-

ties."

Ehrlich also unveiled the new ACLU-

NC. Portfolio, prepared by Public

Information Director Elaine Elinson,

which includes Highlights of the Legal

Program (see insert this issue), a tribute

to the supporters of the ACLU-NC, and

other information about the organization.

"In the next few months," Ehrlich said,

"we will publish reports about our efforts

to mobilize the 30,000 ACLU members in

northern California for action on important

issues, about our extensive public educa-

Shirley Warner (.) and Donna Hitchens.

from their home in Riverhead,

New York for the occasion. Mrs. Warner

brought with her a quilt designed by

Doug's family and put together by mem-

bers of the First Congregational Church

Women's Fellowship in Riverhead. The

quilt, which hung over the speakers' dais,

depicted the many, varied elements of

Doug's life from his love of raspberries

and the Long Island Sound to his work

with the ACLU-NC and Swords to

Plowshares.

A video clip of "Last Call at Maud's",

produced by Paris Poirier, introduced

Lyon and Martin to the audience as they

spoke in a filmed interview about the early

days of the lesbian movement. They spoke

about a New Year's Eve fundraiser for the

Council on Religion and. the Homosexual

at California Hall in San Francisco in 1964

which was raided by the police. "That was

our Stonewall," said Martin, adding that

the ACLU-NC defended those arrested.

Continued on page 3

aclu news

dec 1990

Court Bars Random Drug Tests

of Oil Workers

n November 29, Contra Costa

County Superior Court Judge

Peter Spinetti approved a ground

breaking settlement prohibiting random,

company-wide drug testing of oil refinery

workers.

The case, Price v. Pacific Refinery,

was originally filed in 1986 as a class

action on behalf of workers at the Hercules

oil refinery by attorneys Ed Chen of the

American Civil Liberties

Employment Law Center, and Brad

Seligman of Saperstein, Seligman, Mayeda

Larkin.

Union of -

Northern California, John True of the.

"The mandatory company-wide drug

testing policy which was instituted by the

company in 1986 was a violation of the

workers' privacy rights guaranteed by the

California Constitution," said Chen.

At the time of filing, the superior court

immediately issued a

liminary injunction) barring all testing

while the case proceeded.

The company appealed the ruling

granting the preliminary injunction, but the

Court of Appeal denied the company's

request for an appellate review.

However, in July 1987 the superior

: Temporary .

Restraining Order (later converted to a pre-

court accepted a modified version of the

company's plan which allowed that

employees who work near potentially dan-

gerous equipment or materials be subject

to drug tests if there is a reasonable suspi-

cion by a supervisor of drug use and if the

worker fails a "fitness for duty" examina-

tion administered by a licensed health pro-

fessional. Workers involved in accidents

were also subject to drug testing. The

modified plan allowed employees who

were required to provide a urine sample be

provided with a portion for their own test-

ing, an important procedural safeguard.

Random, blanket testing was still barred.

Since then, however, no drug testing of

any kind has taken place.

The settlement incorporates the provi-

sions in the modified plan. In addition, it

provides for almost $200,000 in damages

to members of the class and for attorneys'

tees

Victory for privacy

"This settlement preserves the constitu-

tional privacy of a large number of work-

ers about whom there was never any

suspicion of wrongdoing," said True. "It is

a real tribute to a few courageous employ-

ees who stood up for their rights."

The settlement, which was agreed upon

by the workers and the company, was pre-

liminarily approved by Contra Costa

County Superior Court at the hearing on

November 29.

Also joining in the settlement are

Laboratory Services, Inc., the lab which

conducted the urinalysis, and Sunbelt

Searching Services, which provided the

technicians to collect the urine samples.

he ACLU-NC joined with over

: thirty tenant, community and legal

organizations in sharply condemn-

_ ing the recently unveiled proposals for ten-

ant residency in San Francisco's public

housing developments.

"The new selection criteria are unfair

and arbitrary," said ACLU-NC Executive

Director Dorothy Ehrlich at a public meet-

ing of the Housing Authority's Tenant

Relations Committee on November 1.

"They punish large numbers of the very

people that they are intended to protect,

they establish vague and sweeping stan-

dards for ineligibility, and they impose a

heavy burden on all applicants to prove

their eligibility."

The ACLU-NC submitted detailed,

written testimony on November 16 as part

of consortium of legal groups which

includes the San Francisco Lawyers

Committee for Urban Affairs, San

Francisco Neighborhood Legal Assistance

Foundation, the National Lawyers Guild,

Legal Services for Prisoners with

Children, and the National Center for

Youth Law.

"Perhaps the most disturbing theme of

the admissions policy is the presumption

that applicants for public housing are gen-

erally unfit, and therefore must bear the

burden of convincing authorities that they

are deserving of public housing," said

Marcia Rosen of the San Francisco

Lawyers Committee for Urban Affairs.

"While we agree that the Housing

Authority must take immediate steps to

protect the safety, security and well-being

of tenants, instituting a more restrictive

policy, by itself, will have little impact on

improving the tenants' quality of life,"

Rosen added.

Additional testimony was provided by

tenants' and community organizations

including the San Francisco Public

Housing Tenants Association, Coalition

on Homelessness, Income Rights Project,

Tenderloin Housing Project, and the

Coalition for an African American

Community Agenda.

"Despite San Francisco's increasing

number of homeless families, youth and

children, San Francisco Public Housing

Authority Executive Director David

Gilmore has proposed yet another obstacle

for the poorest and most vulnerable seg-

ments of the city's population with his

November 1 proposal to restructure. the

admissions criteria for tenant residency,"

said community advocate Sharen Hewitt.

The groups charge that if these proposals

are accepted, they will be used not only to

deny housing to applicants and render

hundreds of families on the waiting list

ineligible, but also potentially affect the

rights of current tenants.

Among the groups' criticisms are:

cent Rejection of an entire family because

one family member has an arrest record

Chilling of tenants' speech

ACLUN_1981.MODS ACLUN_1981.batch ACLUN_1982 ACLUN_1982.MODS ACLUN_1982.batch ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1984.batch ACLUN_1985 ACLUN_1985.MODS ACLUN_1985.batch ACLUN_1986 ACLUN_1986.MODS ACLUN_1986.batch ACLUN_1987 ACLUN_1987.MODS ACLUN_1987.batch ACLUN_1988 ACLUN_1988.MODS ACLUN_1988.batch ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1990.batch ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log Violations of privacy via intrusive

home inspections

-cent Improper use of past criminal records

"Stability and harmony" requirement

is vague and overbroad

According to staff attorney. Margaret

Crosby who drafted the ACLU-NC

response to the guidelines, "These provi-

New Public Housing Rules Blasted

"It forces low-income people to surrender

their fundamental First Amendment rights

as the ticket to subsidized housing."

sions inflict a serious penalty - denial of

shelter - for constitutionally protected

speech, such as `verbal abuse' of Housing

Authority personnel. It forces low-income

people to surrender their fundamental First

Amendment rights as the ticket to subsi-

dized housing."

Crosby also criticized the unannounced

inspection policy. "For the poor as for the

middle-class one's home is one's castle.

The sanctity of one's home is protected by

constitutional rights of privacy," she

argued.

"Moreover," she charged, "penalizing

an entire family for the arrest of one fam-

ily member is cruel and arbitrary. Societal

interests are not served by making and

keeping ex-offenders and their families

homeless."

Ehrlich castigated the vague "stability

and harmony" requirement. "Public hous-

ing officials should not impose an ortho-

doxy on family life. A victim of domestic

violence, whose past was marked by an

unstable and inharmonious home environ-

ment, may be in urgent need of public shel-

ter. Surely, this candidate should not be

punished by the housing authority because

her past life suffered from disharmony."

Moreover, the groups charge, the San

Francisco Housing Authority proposals

bear no relation to the Federal codes nor

do they conform to current HUD guide-

lines. Attaching eligibility to such criteria

as credit checks, arrest records, citizenship

and social security numbers is clearly in

violation of the law.

According to Brooke Haegerty of the

Income Rights Project, "The Housing

Authority proposals are based on the

assumption that by excluding certain

kinds of people the problems of public

housing in San Francisco will disappear.

Yet these proposals only divert attention

away from the real problems: poor main-

tenance, inadequate repairs, unsafe and

unsanitary living conditions, the lack of

programs for youth, lack of fiscal account-

ability and the obstruction of tenant partic-

ipation in determining policy."

In addition to the written testimony,

advocacy groups are planning further

action and response in December.

Field Committee to Select

Priority Issues

he civil liberties issues that the

( ACLU-NC Field Program will

focus on in the new year will be on

the agenda of the 1991 Field Priority

Setting Session on January 26.

"Chapter and membership input is cru-

cial in this process," said Field

Representative Marcia Gallo. "ACLU-NC

Chapters will be meeting from now until

the January session to discuss their priority

issues. We also encourage members to

write in their suggestions.

"We need to carefully select two or

three issues as Field priorities, and will be

making some hard choices," Gallo

explained. "All Chapter Board members

and activists are welcome to attend the

January 26 meeting. When it comes time

to select issues, Chapter Representatives to

the ACLU-NC Board and at-large mem-

bers of the Field Committee each receive

one vote," she added.

Since 1981, representatives from the

ACLU-NC's 17 chapters have met annu-

ally to select the most compelling issues

for ACLU's membership action efforts for

the year.

National Field Rep

Gallo noted that a highlight of the Field

Priority Setting Session will be a presenta-

tion by ACLU National Field

Representative Gene Guerrero. Guerrero,

who works out of the ACLU Legislative

Office in Washington, D.C., was formerly

the Executive Director of Georgia affiliate.

Guerrero will speak about organizing

- ACLU members around the Racial Justice

`Act and other death penalty issues as well

as the crucial civil liberties issues that will

be on the Congressional agenda in the

coming year.

"Guerrero's experience as an affiliate

leader and as the national staffperson

responsible for mobilizing ACLU mem-

bership on key issues will be of- great

importance to us as we decide on our pri-

ority issues for 1991," Gallo said.

In 1990, the priority issues were: Pro-

Choice, Death Penalty, and Student

Outreach.

"We are more effective in our grass-

roots lobbying and public education

efforts when we are focused on a few,

carefully-selected issues," explained Field

Committee Chair Dick Grosboll. "It is

important to understand that the selection

of Field Program priorities does not mean

that other issues aren't important or

actively worked on by other departments

of the ACLU-NC.

"We also recognize that there are often

local issues that chapters need to focus on

that are outside of the Field priority areas,"

Grosboll said.

The designation of priority status to an

~ issue means that the time, attention, and

fiscal resources of the Field Department

are allocated to that issue. Because the

intent of the Field Program is to maximize

the ACLU-NC's ability to have a signifi-

cant impact on a particular issue, in select-

ing priorities, the Field Committee uses

the following criteria:

0x00B0 Issues that can motivate ACLU mem-

bers to action across Northern California.

ACLUN_1981.MODS ACLUN_1981.batch ACLUN_1982 ACLUN_1982.MODS ACLUN_1982.batch ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1984.batch ACLUN_1985 ACLUN_1985.MODS ACLUN_1985.batch ACLUN_1986 ACLUN_1986.MODS ACLUN_1986.batch ACLUN_1987 ACLUN_1987.MODS ACLUN_1987.batch ACLUN_1988 ACLUN_1988.MODS ACLUN_1988.batch ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1990.batch ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log Issues that draw members to become

involved who have not participated in the

organization.

cent Issues that provide a focus for chapter

organizing and outreach.

If you have ideas about priority

issues for the Field Committee, please

contact Marcia Gallo, ACLU-NC, 1663

Mission Street, #460, San Francisco

94103 or come to the Priority Setting

Session on Saturday, January 26 from

10:30 AM to 2:30 PM.

aclu news

8 issues a year, monthly except bi-monthly in January-February, June-July, August-

September and October/November.

Published by the American Civil Liberties Union of Northern California

H. Lee Halterman, Chairperson

Dorothy Ehrlich, Executive Director

Elaine Elinson, Editor

Marcia Gallo, Field Page

ZesTop Publishing, Design and Typography

1663 Mission St., 4th Floor

San Francisco, California 94103

(415) 621-2488

Membership $20 and up, of which 50 cents is for a subscription to the aclu news and

50 cents is for the national ACLU-bi-monthly publication, Civil Liberties.

aclu news

dec 1990 3

Lawyer's Bequest to Benefit Gay Rights,

AIDS Work

CLU supporter Richard M.

A Nelson died of AIDS on June 16,

1989, but his interest in protecting

the civil rights of gay people and people

with AIDS will live on. Through a clause

in his will, Nelson directed two advisors,

Glenn Reid and Robert Nakatani, to select

_ charitable organizations "striving to pre-

serve and establish the civil rights of gay

men, lesbians and/or persons infected with

HIV" and to distribute most of his estate

to those organizations.

The ACLU Foundation received over

$150,000 of the generous gift. Half of that

sum will be used to support the Northern

California affiliate's work in the areas of

lesbian and gay rights and the protection

of the rights of people with HIV; the other

half will underwrite the Lesbian and Gay

Rights Project of the National ACLU.

The ACLU-NC staff has long been

active in gay rights and AIDS civil liber-

ties issues. This work has included promo-

tion of domestic partners legislation and

anti-discrimination legislation locally and

statewide; preserving the privacy rights of

people with AIDS and HIV;

protecting the employment

rights and health benefits of

people with AIDS; fighting

discrimination against gays

and lesbians in the military,

schools and elsewhere; advo-

cating custody and parenting

rights; and opposing segrega-

tion of prisoners with AIDS

and forced HIV testing in the

criminal justice system.

The other beneficiaries of

Nelson's generosity include

the Project on AIDS and the

Law of the National Lawyers

Guild, Lambda Legal

Defense Fund, the National

Center for Lesbian Rights,

the Shanti Project, and

National Gay Rights

Advocates.

Nelson was born in 1936

in Evanston, Illinois. After

graduating from Princeton

Richard M. Nelson

University in Civil

Engineering and Harvard Law School, he

practiced law in Pennsylvania and

Washington, D.C. In 1980, Nelson moved

to San Francisco where he added a

Chartered Financial Planner certificate to

his professional credentials and became

active in gay and civil rights issues.

ACLU-NC attorney Coles, who, while

in private practice often worked with

Nelson on-estate planning, said, "Dick had

a razor sharp mind, and he loved to use it

to get the most out of the system for gay

people. Whenever he'd think of a way to

get the tax laws to work for gay people -

they usually deny gay people most of the

advantages that married people get - a lit-

tle smile would begin to play at the edges

of his lips.

"This gift will be a great legacy to that

spirit of his," Coles added.

For information on making a chari-

table gift from your estate by will, life

insurance or trust, call or write Cheri

Bryant, Director of Development,

ACLU-NC, 1663 Mission St. San

Francisco, CA 94105; 415/621-2493.

Bill of Rights Day ...

Continued from page |

Upon accepting the award, Lyon said

"We started out with three strikes against

us - they told us we were illegal, immo-

ral, and sick. We are pleased to accept this

award on behalf of all lesbians, gay men

and bisexuals who have struggled so long

to make this possible."

Martin added, "Our experience shows

that education and organizing can work!"

The keynote address was delivered by

Dorothy Ehrlich with keynote speaker Derrick Bell.

civil rights advocate Professor Derrick

Bell who earlier this year resigned his ten-

ured post at Harvard Law School to

protest Harvard's failure to tenure a

woman of color. Bell, who is currently

teaching his course for no pay to students

who receive no credit, spoke on "The

Difficulty of Doing Good: the

Unacknowledged Dilemma of Civil Rights

Advocacy."

"The racial equality - that a few dec-

ades ago seemed a

realistic goal - is

now further away

than ever. - bell

said. "Equality, our

experience tells us,

will not come by

laws or winning

cases in the courts.

Indeed what we call

`progress' in civil

rights' _-_ inevitably

depends more on

the perceived bene-

fits to whites of our

proposed racial

reforms than on the

degree of injustice

actually suffered by

blacks or other peo-

disadvantaged

Bell. enumerated

i areas) -

conditions,

desegrega-

tion, affirmative

action in employ-

ment, and housing

discrimination -

enacting civil rights -

where "civil rights campaigns intended to

further what we consider `good' have

proven costly when they failed and coun-

ter-productive even when their original

goals were achieved.

"The fact is," Bell charged, "that we

plan our programs to conform to our ideal

about an integrated America without mak-

ing any real assessment of the continuing

and crucial importance of racial subordina-

tion of black people to the stability of the

American economic and political system.

We do not see the important connection

between the economic subordination of

blacks and the social

stability of whites."

Stressing the need

for "humility" on the

part of all those who

would do "genuine ser- |

vice," Bell stated that

"it is time we face up

to the difficulties of

doing good in the area

of racial reform. Those

difficulties need not

deter but should give

us reason for humility

as we pursue programs

that no matter what we

do are likely to fail."

The program was

brought to a rousing

conclusion by _ the

dynamic songstress

Ronnie Gilbert, for-

merly of The Weavers,

accompanied by pianist

Libby McLaren. In

tribute to Martin and

Lyon, Gilbert sang

about the agitator

Mother Jones and

about a young woman

who brought a female.

date to her Senior Prom. And in tribute to

all those who fight for civil liberties and

civil rights, Gilbert filled the hall and the

hearts of the audience with a moving ren-

dition of Si Kahn's "And They All Sang

Bread and Roses."

The words of that proud, stirring ballad

gave encouragement to those who, as

Halterman said as he closed the program,

"are critical allies in confronting the chal-

lenges before us."

Biil of Rights Day Photos by

Ann Rushing

ACLU-NC Board Chair H. Lee Halterman. Behind the

podium is the quilt created in honor of Doug Warner.

Reproductive Rights Symposium

he California Coalition for

` Reproductive Freedom will sponsor

a symposium in Sacramento for

pro-choice activists on January 22, the

18th anniversary of Roe v. Wade.

The confirmed speakers include Kitty

`Kolbert of the national ACLU

Reproductive Freedom Project, NOW

Vice-President Patricia Ireland, and Dr.

Maida Taylor. Pro-choice legislators have

also been invited to contribute their per-

spective. The symposium will deal with a

broad range of topics including a national

and international overview of reproductive

rights and updates on RU 486, fetal tissue

research, and pending legislation.

"The symposium offers an excellent

opportunity for pro-choice activists to gain

new insights into the struggle to maintain

`abortion rights in California, throughout

the country and around the world," said

ACLU-NC Executive Director Dorothy

Ehrlich, a member of the Coalition's

Steering Committee.

Following the symposium, which is

scheduled from 9:30 AM to 3:00 PM in the

State Capitol, those attending will be able

to lobby their state legislators on pro-

choice measures.

The pre-registration fee is $15.00 and

$20.00 at the door.

To register, send a note and pre-

registration fee (made out to January

22nd "=6Fund), to January 22nd

Symposium, 926 J Street, Suite 523,

Sacramento, CA 95814. For more

information, call 916/442-3414.

aclu news

dec 1990

"Taking Liberties"

A monthly radio

program

on civil liberties

KPFA 94.1 FM

and

KFCF 88.1 FM (Fresno)

| VRS an

ax

(C3

py

-

iy

~ Tune your radio dial to "Taking Liberties!"

Wednesday, December 26

at 7:00 PM

Gimme Shelter:

Challenging Restrictions

on Public Housing

Join special guest Sharen Hewitt, a

leader in the fight against the San

Francisco Housing Authority's new propo-

sals on exclusion of tenants.

Wednesday, January 30

at 7:00 PM

The Future of

Reproductive Rights

On the 18th Anniversary of Roe v.

Wade, hear about the current state of abor-

tion law in California and the challenges

that face the pro-choice movement. Guest

host Dorothy Ehrlich. :

"Taking Liberties", explores how the

Bill of Rights affects our everyday lives.

The series is aired on KPFA and KFCF in

Fresno. :

The monthly program, hosted by -

ACLU-NC Public Information Director

Elaine Elinson, includes expert guests on

cutting edge civil liberties questions. It

also features a special section with civil

liberties news updates and information on

how listeners can make their voices heard

on crucial civil liberties issues.

[ OBSCENE PHONE CALLS OF THE 900x00B0S |]

# 142

MS. WILLIAMS, WE'?VE_ NOTICED

SOME DISTURBING ACTIVITY ON

YOUR CITISNOOE VISA =

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TICKETS ANP A COUPLE OF

" (Usually

Field Program Monthly

Meetings

Chapter

Meetings

(Chapter meetings are open to all interested

members. Contact the chapter actvist listed

for your area.)

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

Kensington) Chapter Meeting: (Usually

fourth Thursday) Meeting on Thursday,

January 24, 1991 in Berkeley. Contact Julie

Houk, 415/848-4752, for further informa-

tion. :

Earl Warren (Oakland/Alameda County)

Chapter Meeting: (Usually second

Wednesday) The meeting on Wednesday,

January 9, 1991, will focus on police prac-

tices. For time and address of meetings,

please call Irv Kermish, 415/836-4036 or

Abe Feinberg, 415/451-1122.

Fresno Chapter Meeting: (Usually third

Monday) Meeting on Monday, January 21,

1991 at San Joaquin Law School. New

members always welcome! For time and

address of meetings, please call the Chapter

Hotline 209/225-7380 or contact Gary

Waldron, 209/221-1114 (eve.)

Gay Rights Chapter Meeting: (Usually

first Thursday) Meet Thursday, January 3,

1991 at 7:00 PM at the the ACLU Office,

1663 Mission, #460, San Francisco. For

more information, contact Mike Williams,

415/845-4777.

Marin County Chapter Meeting: (Third

Monday) Meet Monday, January 21, 1991 at

7:30 PM, Westamerica Bank, Room 1204

Strawberry Village, Mill Valley. For more

information, contact Bernie Moss, 415/332-

Sp3e

Mid-Peninsula (Palo Alto area) Chapter

Meeting: (Usually first Thursday) Meet

Thursday, January 3, 1991 7:30 PM at the'

Mercury Savings Bank, Menlo Park. For

more information, contact Harry Anisgard,

415/856-9186.

Monterey County Chapter Meeting: The

Monterey County Chapter will sponsor their

Annual Chapter Membership Meeting on

Saturday, January 26, 1991 at 2:00 PM at the

Monterey Library, Pacific and Madison

Streets, Monterey. For more information,

contact Richard Criley, 408/624-7562.

Mt. Diablo (Contra Costa County)

Chapter Meeting: (Now fourth Thursday)

Meet Thursday, January 24, 1991 at 7:30

PM. For more information, contact Mildred

Starkie, 415/934-0557. Calling all teachers:

are you interested in working with the chap-

ter on a "civil liberties essay contest" for stu-

dents? If so, contact Mildred Starkie, number

above.

North Peninsula (San Mateo area)

Chapter Meeting: (Usually third Monday)

Meet Monday, January 21, 1991 at 7:30 PM,

Bank of America, Third and El Camino, San

Mateo. Contact Emily Skolnick, 340-9834.

Note: The North Pen Chapter has a new -

Hotline number: 579-1789. The Chapter

Student Outreach Committee needs help

organizing a high school essay contest on the

Bill of Rights. Contact Neil Kelly, 415/593-

6156 (eves).

North Valley (Shasta, Siskiyou, Tehema,

and Trinity Counties) Chapter Meeting:

fourth Wednesday) Meet

Wednesday, January 23, 1991. For more

information contact Frank Treadway, 916/

365-4336 or 916/241-7725.

Sacramento Valley Chapter Meeting:

(Usually second Wednesday) For location

and more information, contact Ruth Ordas,

916/488-9950.

San Francisco Chapter Meeting: Meet

Wednesday, January 23 and Wednesday,

February 20, 7:00 PM at ACLU office, 1663

Mission, 460, San Francisco. RSVP to 415/

621-2493.

Santa Clara Valley Chapter Meeting:

(Usually first Tuesday) Meeting on January 8

at Commerce Bank Building, 111 West St.

John Street, 2nd Floor Conference Room,

San Jose. Contact John Holly, 408/554-9478,

for time and further information.

Santa Cruz County Chapter Meeting:

(Usually second Wednesday) Program

planned for mid-January on Reproductive

Rights. Chapter is continuing work on com-

batting hate crimes. Contact Keith Lesar,

408/688-1666, for further information.

Sonoma County Chapter Meeting: (Third

Thursday of the month) Meet Thursday,

January 17, 1991 7:30 PM, 821 Mendocino

Ave, Santa Rosa. All members welcome.

Contact Fran Byrn, 707/546-3237. The

Sonoma County Chapter will hold the

Annual Dinner on January 18, 1991 at 6:00

PM at the Rohnert Park Community Center.

Contact Fran Byrn, number above.

Yolo County Chapter Meeting: (Third

Thursday of the month) For more informa-

tion, contact Doug Powers, 916/756-8274.

Field

Committee

Meetings

Field Committee Meetings (All meetings

except those noted will be held at the

ACLU-NC Office, 1663 Mission Street,

Suite #460, San Francisco. To RSVP, or for

more information, contact Marcia Gallo or

Michele Hurtado at the ACLU-NC 415/621-

2493.)

Student Outreach Committee: (Usually

third Saturday) Meet Saturday, January 19,

1991 from 10:30 AM - 12:30 PM.

Field Committee Meeting: Meeting on

Thursday, January 10, 1991 at 6:00 PM.

Annual Priority Setting Session is

Saturday, January 26, 1991 from 10:30 PM -

2:30 PM. Special Guest: ACLU -

Washington D.C. Field Coordinator Gene

Guerrero.

Pro-Choice Action Campaign: (Usually

third Tuesday) Meet Tuesday, January 15,

1991 at 6:30 PM. Help organize our Teen ,

Reproductive Rights Project and plan for

1991. Roe v. Wade: 18 Years of Abortion

Rights - The Fight Goes On! Come on.

Sunday, January 20, 7 PM to 9 PM, Wheeler

Auditorium, U.C. Berkeley. For more infor-

mation, call 415/526-1914.

Death Penalty Action Campaign: Contact

Marcia Gallo, number above, for more infor-

mation.

Volunteers Needed (c)

olunteers with a deep commit-_

ment to the protection of civil lib-

erties are always welcome at the

Complaint Counselors. Contact: Lisa

Maldonado, Complaint Desk

Coordinator, at 415/621-2493.

MORALLY- REPUGNANT

PAPERBACKS.

ACLU-NC!

Archive Librarians

The ACLU-NC maintains subject files

on a wide variety of civil liberties issues.

Volunteer librarian Clara MacDonald

organizes the subject files and is looking

for assistance. If you have some library or

research experience, are interested in civil

liberties documentation, and are available

during office hours on Wednesdays or |

Thursdays. please leave a message for

Clara: MacDonald at the ACLU-NC,

415/621-2493.

Complaint Counselors

Complaint Desk Counselors' duties

include screening phone calls for civil lib-

erties issues, giving information and refer-

Oo rals to the public, and some peer

counseling. Volunteers must be able to

oe

Lo ) commit to staffing the Complaint Desk

BARN!

SHOULPA

USEP

CASH /

Sx one day a week for at least six months,

S , | have a good telephone manner, and a

c | desire to work with the public. Training

will be provided by experienced

NE OF THE FIRST LEGAL

actions of the American Civil Liberties

Union of Northern California when it

was founded in 1934 was to sue the cities

of San Francisco and Oakland for not

protecting the free speech rights of Bay

Area longshoremen who went on strike

to improve the notoriously bad working

conditions on the waterfront.

More than half a century later, the

ACLU-NC Legal Department is still

suing cities around northern California

to protect the First Amendment rights of strikers...

and environmental protesters, students, anti-

apartheid activists, peace advocates, reporters,

tenants, religious groups, political campaigners, and

all who want to exercise their right to freedom of

expression.

This year, the ACLU-NC legal docket reflects

the wide range of issues which have become the civil

liberties battleground of the 90s. In addition to First

Amendmentcases, our Legal Departmentis working

oncases in the priority areas of reproductive rights,

immigrant and refugee rights, homelessness and

poverty, drug testing, AIDS, race discrimination,

capital punishment, police abuse, language minorities,

and lesbian and gay rights.

The growing hostility to civil liberties of state and

federal courts means that we often have to prove

things which were once assumed, or accepted when

demonstrated with something short of a full trial.

Now, a significant portion of our cases go to trial,

and the trials are frequently long and complex. Last

year, one staff lawyer spent over four months in trial

in one case and another staff lawyer spent three

months trying one case and a week trying another.

All this means that litigation is more expensive, in

terms of both out-of-pocket cost and time.

We have come to believe that we can often

achieve better results for less outside of court. This

means that we think of direct advocacy as a primary

tool, not just as an alternative when litigation is

unattractive.

This report does not list every case on our current

legal docket. It includes those cases in which there

was significant activity this year, as well as other

forms of legal advocacy in our priority areas. With

this report, we hope to share with you some of the

highlights of the legal program - both litigation and

direct advocacy - of the ACLU-NC during 1990.

The Bay Area Peace Navy held a sea-going demonstration during Fleet Week, armed with a court Fra which pretented) the U.S. Navy from imposing a 75-yard "security zone"

photo: Janet Delaneyleourtesy Bay Area Peace Ney

tn San Francisco Bay.

The Legal

Department

HE ACLU-NC LEGAL

Department is staffed by four

full-time attorneys: Matthew

Coles, Edward Chen, Margaret

Crosby and Alan Schlosser.

The responsibilities of the

Managing Attorney are rotated

among the four staff counsel

yearly: in 1990, the Managing

Attorney is Matthew Coles. In

addition, the Legal Department in-

cludes the Police Practices Project,

headed by attorney John Crew and the

Death Penalty Project, directed by

attorney Michael Laurence. The attor-

neys have been ably assisted by Frances

Beal, Ellen Ghelfi, Anne Hietbrink and

Patrisha Vestey.

The Legal Department also oversees

the work of the Complaint Desk,

which is supervised by Lisa

Maldonado, The Complaint Desk,

staffed by a dozen volunteer counsel-

ors, receives more than 200 calls and

letters each week from people who feel

their rights have been violated. Assisted

by the staff attorneys and law students

who clerk for the ACLU-NC during

the year, these lay counselors screen

requests for assistance and often pro-

vide the advocacy needed to resolve

particular grievances.

This year, The ACLU-NC estab-

lished the Robert Paine Internship

Fund with the generous donation from

the sister of a law school graduate who

died before he could fulfill his dream of

being a human rights lawyer. The

Fund allows needy students to intern

with the Legal Department as they

prepare to practice civil liberties law.

We share the accomplishments of

our legal program with over 100

dedicated lawyers who donate their

services to the ACLU-NC as cooperat-

ing attorneys. More than half of our

cases this year (57%) were handled by

cooperating attorneys working with

staff counsel. Without their expertise

and advocacy, the ACLU-NC would

not be able address many pressing civil

liberties issues. A list of the 1990

cooperating attorneys is on page 8.

Freedom of

Expression

HIS YEAR, THE NATION

was rocked by dangerous

threats to freedom of expres-

sion in the arts: the arrest and

trial of museum director Den-

nis Barrie in Cincinnatti for

the exhibition of Robert

Mapplethorpe photographs,

the conviction on obscenity

charges of a record store

owner in Broward County, Florida for

selling the rap music of 2 Live Crew,

and the denial of funds to controversial

artists by the National Endowment for

the Arts.

Even in northern California, we

were not immune to this onslaught of

censorship. The ACLU-NC wrote to

the San Francisco Board of Supervisors

supporting Jock Sturges, an interna-

tionally recognized San Francisco

photographer whose studio was

invaded and life's work destroyed by

law enforcement officials on the spuri-

ous grounds that he was producing

child pornography. We also prepared

to go to court when the Sacramento

District Attorney's office threatened to .

prosecute distributors of 2 Live Crew

albums. And we challenged the

Berkeley School District's ban on rap

music concerts at the community

theater, reminding them that a ban

based on the content of the music is

unconstitutional.

We also filed numerous freedom of

expression cases on behalf of plaintiffs

ranging from Redwood Summer envi-

ronmentalists who were being barred

from marching through a logging town

near the northern ancient redwood

forests to a woman who was sued for

libel by police officers after filing a civil

rights suit against them-the results in

these cases were generally positive.

- The ACLU-NC successfully ob-

tained a Temporary Restraining Order

(TRO) allowing demonstrators from

Redwood Summer, an organization.

protesting the U.S. government's and

logging companies' practices which

endanger old growth forests, to hold a

Labor Day march in the city of

Fortuna.

City officials had thrown many

obstacles in the way of the permit ap-

plication and threatened to cite and

arrest participants if they marched

without a permit.

The TRO in the lawsuit, Redwood

Summer v. Fortuna, was granted on the

eve of the planned march.

In September, we returned to federal

court on behalf of four of the Redwood

Summer activists who, after being

arrested and jailed for trespassing dur-

ing an environmental protest, had their

heads forcibly shaved by the Humboldt

County Sheriffs Department.

The ACLU-NC challenge, Red-

wood Summer v. Humboldt County

Sheriffs Department, charged that the

head shaving was a violation of the

First, Fourth and Eighth Amendments.

The San Francisco Police

Department's guidelines regulating

intelligence gathering on political pro-

test groups were opened up to public

scrutiny by a state Court of Appeal

ruling in ACLU v. Jordan. The deci-

sion capped a five-year battle by the

ACLU-NC to gain access to the guide-

lines. The suit was part of our

broad-based attempt to make the

Department accountable for their

wide-ranging intelligence gathering

activities.

The decision stems from our

California Public Records Act lawsuit

against the Department in 1984 follow-

ing SFPD surveillance and harassment

of the Ku Klux Klan during the

Democratic National Convention in

San Francisco.

The appellate court also ruled that

the Department must reveal certain

documents from the Klan file, includ-

ing a memo on the group's plan to

demonstrate at the Convention and

information on other Klan activity

from 1978-83.

In September, the U.S. Court of

Appeals upheld the First Amendment

rights of an armada of peace activists.

The court declared restrictions the U.S.

Navy had imposed on "Fleet Week"

demonstrations by the Bay Area Peace

Navy unconstitutional.

In 1987, the U.S. Navy barred the

Peace Navy, a flotilla of nearly 100

small vessels, from entering a 75-yard

"security zone" around the reviewing

stand at Aquatic Park. The restrictions

made it impossible for spectators on the

pier to hear the group's peace songs or

see their banners. When the

ACLU-NC filed suit, Bay Area Peace

Navy v. U.S. Navy, a District Court

judge issued an injunction against the

restrictions. The government appealed.

This year's ruling came only two weeks

before the annual Fleet Week demon-

strations.

The ACLU-NC is also representing

anti-apartheid demonstrators in San

Francisco (California Stevedore and

Ballast Company v. Bay Area Free

South Africa Movement) and striking

union members (Northern California

Newspaper Organizing Committee v.

Solano Mall) in freedom of expression

cases which are pending in superior

court.

In Fuentes v. Berry, the Alameda

County Superior Court ruled in March

that Alameda City police officers can-

not sue several family members for

"malicious prosecution" because of an

earlier brutality suit one of them had

filed against the police.

In 1987, Virlee Berry filed a civil

rights suit in U.S. District Court alleg-

ing that she had been beaten by the

officers. In her suit, Berry alleged racial

discrimination and brutality. On the

eve of trial, she agreed to settle for an

undisclosed sum.

Three months later, the three offic-

ers sued Berry and two other members

of her family claiming that her suit had

been brought in bad faith and without

reasonable cause.

In dismissing the officers' lawsuit,

the court agreed with ACLU-NC

arguments that police officers cannot

file malicious prosecution suits based

on civil rights suits which have been

settled.

In Guadiya Vishava Society v. San

Francisco, the Ninth Circuit Court of

Appeals agreed with arguments in an

ACLU-NC amicus brief when it ruled

in April that the City of San Francisco

cannot ban the sale of "message-

bearing" T-shirts from city streets. The

ruling came in a lawsuit filed by

non-profit organizations, including

Greenpeace, the Nuclear Weapons

Freeze Campaign, CISPES and the

Lesbian/Gay Freedom Day Campaign,

who asserted that the city's policy

violated their First Amendment rights.

Press Freedom

We have several freedom of the

press cases pending, including our

longest standing case McCoy v. Hearst

Corporation. In 1989, the San Francisco

Superior Court denied a request to

hold a new trial in the case against two

reporters, who are represented by the

ACLU-NC, and the San Francisco

Examiner who were sued for libel by

two police officers and an assistant

district attorney.

After a lengthy trial and an original

$4.6 million judgment against the re-

porters and the newspaper, the

California Supreme Court unani-

- mously ruled in 1986 that the law

enforcement agents had failed to prove

that the reporters knew or suspected

that the articles on a Chinatown mur-

der case were false. The U.S. Supreme

Court refused to hear the case in 1987.

The law enforcement officials requested

a new trial, which was denied in 1989.

The superior court entered final judg-

ment for the reporters. The law

enforcement officials have appealed the

judgment.

The ACLU-NC is representing a

small Santa Cruz newspaper in a libel

suit, Hartmann v. Solar Powers, Inc.,

brought against it by a local political

activist. The ACLU-NC argues that

because the article involves a public

figure and is a matter of important local

political controversy, the plaintiff

should be required to prove constitu-

tional malice. The paper claims that the

article is accurate, and that there is no

evidence of malice in its publication.

The paper also claims a privilege for the

identity of its source.

In a case in which we filed an amicus

brief, Sebago v. Alameda, the Court of

Appeal struck down an ordinance

banning news racks for publications

dealing with sex. However, we had an

unfavorable ruling in Brown v. Kelly

Broadcasting, when the California

Supreme Court ruled that private indi-

viduals involved in public affairs can

sue news agencies for defamation with-

out having to prove that the press acted

with ill will or reckless disregard for the

truth. We had submitted an amicus

brief on behalf of a Sacramento televi-

sion station which aired a consumer

report criticizing the work of a contrac-

tor who did repairs on low-income

publicly financed housing.

The ACLU-NC is seeking a perma-

nent injunction in a successful case on (c)

behalf of tenants who fought restric-

tions on their right to put political

posters in their apartment windows

(Safadi v. Parkmerced).

Much of our non-litigation work in

the arena of freedom of expression

deals with the rights of students. The

University of San Francisco agreed to

allow pro-choice student groups to

circulate petitions and announce meet-

ings on campus after negotiations with

ACLU-NC attorneys. We are hoping

that the enlightened policy adopted by

USF will be a model for other Catholic

universities now grappling with the

question of dissent on campus. -

In addition students at several

northern California high schools who

had been disciplined by school officials

for wearing Spuds McKenzie and Bart

Simpson T-shirts to class had their

rights vindicated when letters from the

ACLU-NC to school principals citing

the Education Code's guarantee of

freedom to expression for students

prompted a change in the schools'

policies.

We also protested to the FBI when,

without parents' permission, agents

pulled a group of San Francisco middle

school students out of class and ques-

tioned them about a social studies

teacher who had burned miniature

United States flags in class. The stu-

dents were probed about their beliefs

and their parents' beliefs. The legal staff

is pursuing measures with the San

Francisco Unified School District to

prevent such interrogation from

happening again.

Reproductive

Rights

IKE THE 1989 WEBSTER

decision before them, this year's

United States Supreme Court

decisions in two parental notifi-

cation cases (Hodgson and

Akron) focused national atten-

tion on the abortion issue and

galvanized both pro-choice and

anti-choice forces. Our most

important objective in California

was to protect the state constitutional

right to privacy and its independent

support for reproductive choice.

Staff attorney Margaret Crosby

serves as legal consultant to the Califor-

nia Coalition for Reproductive

Freedom, a statewide coalition of

pro-choice organizations, and, in many

respects, has become the legal arm of

the pro-choice movement in California.

This year, she has done an unusual

number of speaking engagements and

media appearances and written exten-

sively on the abortion controversy in

order that women in this state know

that their right to abortion is secure

despite negative U.S. Supreme Court

rulings.

In our own case concerning young

women's access to abortion (American

Academy of Pediatrics v. Van de

Kamp), the California Court of Appeal

issued a strong ruling reaffirming the

independence of California's right to

privacy and refusing to permit enforce-

ment of a law restricting abortion. In

1989, the state Court of Appeal upheld

a lower court order enjoining

California's 1987 law requiring teenag-

ers to obtain parental consent or a court

order before they can have an abortion.

The Court ruled that the California

Constitution has an independent right

to choose abortion, which the state can

infringe only if it shows a compelling

purpose. The case will return to supe-

rior court for trial to see whether the

state can meet its burden of proving

that the law promotes important

purposes.

The case originated in 1987 when,

after a parental consent law was passed

by the Legislature and signed by the

Governor, the ACLU-NC and the

Adolescent Health Care Project of the

Pregnant women and new mothers

who have substance abuse problems are

increasingly being subjected to an array

of punitive measures. In the guise of

protecting "fetal rights," drug addicted

pregnant women and addicted women

who give birth are prosecuted and

denied custody of their children. All of

these developments are against the

backdrop of the almost total unavail-

ability of treatment programs. The

ACLU-NC is monitoring these cases

and preparing a manual on legal sup-

port for drug addicted pregnant

women.

Shop steward and hospital dietitian Yolanda Cortez fought the English Only rules at . z

the University of California.

photo: Ric Rocamora

National Center for Youth Law filed a

challenge in superior court seeking to

block the law. On behalf of a coalition

of medical organizations and health

care providers, attorneys argued that

under the California Constitution

minors have an equal right to privacy

of their reproductive choices as adult

women.

The plaintiffs submitted extensive

expert testimony on teenagers' capacity

to make informed decisions about

pregnancy and about the devastating

impact parental involvement laws have

on young women's health. This evi-

dence will now be examined by the

superior court in a trial which is ex-

pected to be scheduled in the next year.

One extremely important case-the

right of poor women to have access to

abortion-is significant by its omission.

This year, for the first time in over a

decade, the ACLU-NC did not have to

file its annual lawsuit challenging the

Legislature's restrictive cuts in

Medi-Cal funding for abortion. For the

first time since 1978, the Legislature's

Budget Act included no restrictive

language on Medi-Cal abortion funds.

This victory resulted in part because of

extensive lobbying efforts by our legis-

lative advocates, activists and members.

For the past twelve years, Medi-Cal

funds for abortion were provided only

because of the successful legal chal-

lenges brought by the ACLU-NC on

behalf of a coalition of Medi-Cal recipi-

ents, abortion providers, women's and

welfare rights organizations. As a result

of court decisions in these lawsuits,

California is one of a handful of states

which has never stopped funding abor-

tions for poor and low-income women.

Language

Minorities

HROUGH LITIGATION,

research and coalition-

building, staff attorney Ed

Chen has become a national

leader in the movement to

fight English Only laws, ordi-

nances and workplace rules.

We currently publish the

newsletter of National Coali-

tion for Language Freedom.

With our encouragement and assis-

tance, the national ACLU published a

briefing paper on why the ACLU

opposes the English Only movement.

We helped obtain a contract with the

University of Chicago Press to publish

a general source book on the issue in

- _ which Chen has contributed two pieces

and we also published the proceedings

from the 1988 Stanford conference on

English Only laws. We successfully

advocated a State Bar resolution oppos-

ing English Only workplace rules and

helped defeat English Only legislation

in Sacramento. Finally, Chen has been

active in the media on this issue, ap-

pearing in feature articles in the Los

Angeles Times Magazine, New York

Times and other publications.

We successfully settled a complaint

against an English Only workplace rule

at the University of California at San

Francisco (UCSF). The University

agreed to withdraw all policies which

ban workers from speaking a language

other than English while at work and

to send individual notices to every

Champion Stanford diver Simone LeVant dove into a controversy which resulted in the first succeddful challenge to the NCAA drug

testing of Dee athletes.

photo: Chuck Painter

employee informing them of their

rights. The University also agreed to

conduct management and cultural

sensitivity training.

We participated in a decision, Asian

American Business Group v. Pomona,

in which a federal District Court struck

down a local ordinance restricting the

amount of foreign language that can

appear on private business signs on

First and Fourteenth Amendment

grounds.

Drug Testing

N THE PAST FEW YEARS

we have seen a national upsurge in

drug testing: half of the Fortune

500 companies now submit their

employees to drug testing. Presi-

dent Reagan's 1986 Executive

Order calling for a "Drug Free

Federal Workplace" has led to

widespread drug testing of federal

employees.

ACLU-NC staff attorney Ed Chen

has brought challenges to drug tests on

behalf of all kinds of workers -public

and private sector, job applicants, and

college athletes, with varying results.

Public sector employees

Federal court rulings have been

mixed after the two United States Su-

preme Court decisions upholding drug

testing in 1989. We won most of the

claims in a challenge to testing by the

federal Office of Personnel Manage-

ment, Connelly v. Horner; the District

Court enjoined random and

post-accident testing, but did permit

reasonable suspicion testing. Another

District Court has refused to permit

random testing of Bureau of Prison

Personnel (American Federation of

Government Employees v. Meese) even

after the Supreme Court cases.

In Hansen v. Turnage, a drug test-

ing challenge on behalf of the

employees of the Veterans Administra-

tion, the ACLU-NC and the

Employment Law Center won a pre-

liminary injunction from the federal

court prohibiting random and

post-accident drug testing of VA work-

ers. The court ruled that the "Drug

Free Federal Workplace" plan appeared

to violate the Fourth Amendment

rights of employees; it also limited

testing based on "reasonable suspicion"

to suspicion of on-the-job drug use or

impairment, ruling that anonymous

tips were not sufficient grounds to test.

A trial has been set for mid-1991.

The key issue in the federal courts,

appears to be how sensitive a job must

be before random testing is to be per-

mitted.

Job applicants

In the state courts, we suffered a

substantial setback in Wilkinson v.

Times Mirror Books, in which the Cali-

fornia Court of Appeal upheld

preemployment testing even though

there was no evidence of a drug prob-

lem and none of the jobs involved

public safety. This is the first lawsuit to

challenge a mandatory drug testing

program for job applicants by a private

employer. It was filed by the

ACLU-NC and the Employment Law

Center on behalf of three women who

applied for editorial positions at an East

Bay publishing firm. The California

Supreme Court has refused to consider

the case.

Private sector employees

On the other hand, the California

Court of Appeal upheld a substantial

jury verdict in Luck v. Southern Pacific,

where the plaintiff, a computer pro- .

grammer, was terminated for refusing

to submit to a random drug test.

In the case of Price v. Pacific Refin-

ing Company, the ACLU-NC

thwarted an attempt by a Hercules oil

refinery to reinstate company-wide

testing when the state Court of Appeal

denied the company's request for an

appellate review of the case as well as

the company's petition to overturn the

preliminary injunction against drug

testing. In a 1986 challenge to the man-

datory company-wide drug testing

policy as a violation of the workers'

privacy rights guaranteed by the Cali-

fornia Constitution, the ACLU-NC

and the Employment Law Center won

a preliminary injunction from the

Contra Costa Superior Court.

However, the superior court accept-

ed a modified version of the company's

plan which allows that employees who

work near potentially dangerous equip-

ment or materials be subject to drug

tests if there is a reasonable suspicion -

by a supervisor of drug use and the

worker fails a fitness for duty examina-

tion administered by a licensed health

professional. Workers involved in acci-

dents may also be subject to drug test-

ing. The plan allows employees who are

required to provide a urine sample be

provided with a portion for their own

testing, an important procedural safe-

guard. Random, blanket testing is still

barred under the preliminary injunc-

tion. A tentative settlement has been

reached which would make the prelimi-

nary injunction permanent and provide

for damages to be paid to the workers.

4

Student athletes

In a suit initiated by the captain of

the Stanford women's diving team, Hill

and McKeever v. NCAA, Stanford

athletes represented by the ACLU-NC

won a ruling against mandatory drug

tests that could potentially affect tens of

thousands of college athletes. In Sep-

tember, the Court of Appeal upheld a |

superior court injunction prohibiting

the NCAA (National Collegiate Ath-

__ letic Association) from requiring

Stanford students to submit to drug

testing in order to enter NCAA com-

petitions. .

The court, in addition to agreeing

that the testing violated privacy rights,

ruled that the tests are overly broad

because thousands of drugs-including

birth control pills and over-the-counter

cold medicines-are detected by the

drug tests.

The NCAA began requiring

college athletes to submit to drug test-

ing in 1986; NCAA competitions

involve 250,000 college athletes across

the country.

Although we have no further plans

to bring additional litigation challeng-

ing employee or student drug testing at

this time, Chen continues to provide

advice and technical assistance, and

write and speak widely on the issue.

For instance, he assisted attorneys in

Nevada challenging a drug hair test

program of Harrah's Casino. We are

also looking at other privacy issues at

the workplace.

Racial

Minorities

N RESPONSE TO THE

alarming rise of racial harassment on

college campuses, including

Stanford, U.C. Berkeley and other

northern California institutions, the

Legal Department has worked with

the Board of Directors and the

other California affiliates to create

policy which accommodates free

speech and rights of equality in the

context of college rules regulating hate _

speech.

We have played a leading role in the

Bay Area Coalition for Civil Rights,

especially in publicizing and mobilizing

for the passage of the 1990 Civil Rights

Act, a measure which attempted to

restore key protections against race and

sex discrimination at the workplace

which were dismantled by a series of

devastating U.S. Supreme Court deci-

sions last term. The Act was vetoed by

President Bush and the Senate failed to

override the veto by one vote.

We brought an important equal

protection challenge in U.S. District

Court to federal discrimination against

aliens, Vietnamese Fishermen Associa-

tion of America v. U.S. Coast Guard.

Vietnamese fisherman who were de-

tained and cited by the U.S. Coast

Guard for allegedly violating a 200-year

old statute barring non-citizens from

piloting large vessels in U.S. waters

won an order from the Ninth Circuit

Court of Appeals preventing the Coast

Guard from enforcing the law while the

merits of the case were being decided.

The ACLU-NC, the Asian Law

Caucus and a private law firm, repre-

senting the fishermen's association and

several individual fishermen, charge

that enforcement of the obsolete federal

statute violates a Fifth Amendment

guarantee against discrimination against

non-citizens and resident aliens.

In its final hours, the 101st Congress

_ passed a measure, sponsored by Repre-

sentative Norman Mineta and lobbied

for by the ACLU, that will for the first

time allow fishermen who are not U.S.

citizens to legally own and pilot com-

mercial fishing vessels off the California

coast. This new legislation, which will

be effective for ten years, makes the

lawsuit moot.

In the case of Van Den Berg v.

Kimura, the ACLU-NC is defending a

Japanese-American university official at

U.C. Santa Cruz ina libel action

brought against him and the university

by another university administrator.

_ The Japanese-American official, upon

learning that a college-sponsored Fili-

pino cultural night had been canceled

because it fell on the December 7 anni-

versary of Pearl Harbor Day, wrote an

angry letter to the college bursar char-

acterizing him as a racist. The bursar is

now suing over the letter.

The racially discriminatory use of

"gang profiles" was brought out very

sharply when the ACLU-NC received

numerous complaints from

African-American, Latino and Asian

teenagers who had been thrown out of

Great America, the popular Santa Clara

amusement park, because the park's

security guards did not like their

"dress" or their "attitude." At least a

dozen youths contacted the

ACLU-NC and other civil rights orga-

nizations after they were detained,

questioned and ejected from Great

America; some were even arrested.

_ Their "gang profile" dress was

amorphous and arbitrary, sweeping in

caps with writing on them, acid washed

jeans, and jackets worn off the shoul-

der; many were detained during the

July 4 weekend when they saw white

youths - in the same kind of clothing

- at the park without being stopped or

questioned.

Charging that this racial stereotyp-

ing violates the Unruh Civil Rights

Act, Chen organized a meeting be-

tween the young men, their parents,

civil rights attorneys and the directors

of Great America and is prepared to

litigate if this practice continues.

Unfortunately, this trend of racial

stereotyping does not stop at the gates

of Great America. Based on complaints

from students and parents, we are in-

vestigating race discrimination in the

guise of "gang profiles" at high schools

in Alameda and police harassment of

Filipino teenagers in Hercules.

In addition, noting the dispropor-

tionate number of minority students

who are expelled from San Francisco

high schools, the ACLU-NC is work-

ing with the school district and the

local Bar Association to ensure that

these students are adequately repre-

sented at expulsion hearings.

The ACLU affiliates of Northern

and Southern California, representing

several voting rights groups, argued

that Los Angeles County, in accor-

dance with the state Election Code,

must undertake affirmative voter regis-

tration programs where there is

evidence of under-registration of

low-income and minority voters. The

California Supreme Court remanded

the case to superior court, where a trial

is pending.

as

AIDS

LTHOUGH SOME OF

our previous lawsuits, coupled

with legislative lobbying, were

successful in fighting measures

to end anonymous and confi-

dential HIV testing, we faced a

number of setbacks in our

attempts to prevent involuntary

testing of persons accused of

crimes and discrimination

against persons with AIDS.

We suffered a significant setback in

March, when the state Court of Appeal

upheld the constitutionality of Proposi-

tion 96, the initiative passed in 1988

which mandates HIV testing for certain

arrestees. The law, which went into

effect in 1989, allows a person accused

of interfering with a law enforcement

officer, firefighter or emergency medi-

cal worker to be tested if there is reason

to believe that any "bodily fluid" was

transferred from the accused.

We filed an amicus brief challenging

the law as a violation of the Fourth

Amendment in Johnson v. San Fran-

cisco Sheriff's Department. The suit was

brought by a woman who, when de-

nied her custody of her child by a

judge, allegedly bit a deputy sheriff.

The deputy asked the municipal court

to order the woman to take an HIV

test. The municipal court forced the test

and the Court of Appeal refused to

overturn the ruling.

We suffered another setback when

the U.S. District Court upheld the

FBI's decision to stop using a physician

with AIDS for routine employee physi-

cals (Dr. Doe v. FBI). Represented' by

the ACLU-NC and the Employment

_ Law Center, the doctor sued, charging

that the FBI violated the federal Reha-

bilitation Act and invaded his privacy.

Following a trial in 1989, the U.S.

District Court ruled that federal agen-

cies cannot be sued under the

Rehabilitation Act. It also ruled that the |

FBI's use of private medical informa-

tion was "reasonable," even though it

agreed the doctor presented no threat

to FBI staff. Matthew Coles argued the

appeal before a three-judge panel of the

Ninth Circuit in May.

In another employment discrimina-

tion case, Raytheon v. Fair

Employment and Housing Commis-

sion, the ACLU-NC joined an

ACLU-SC amicus brief in support of

the Fair Employment and Housing

Commission's decision that AIDS is a

disability under state anti- discrimina-

tion law. (c)

Raytheon Corporation appealed the

Commission's ruling that the company

violated the Fair Employment and

Housing Act by discriminating against

an employee, now deceased, because he

had AIDS. The Court of Appeal up-

held the Commission's decision.

One of our most significant accom-

plishments in AIDS litigation is Gates

v. Deukmejian, our suit against the

Department of Corrections over segre-

gation of HIV infected inmates. The

case was settled after three months of

trial. The Department agreed to adopt a

pilot program in which HIV infected

inmates would be housed together, but

would participate in almost all prison

programs, recreation and jobs with

other inmates. At the end of the pilot,

the Department will announce all of its

future plans for HIV infected inmates.

If we disagree with any aspect of the

program, we can contest it (and make

our original legal arguments) through a

mediation process or in District Court.

So far, the program appears to be going

well.

In another case on behalf of prison-

ers with AIDS, Jane Does v. California

Department of Corrections, the

ACLU-NC, ACLU-SC, and the

Prison Law Office filed a class-action

suit against the Department on behalf

of six women inmates with HIV

infection.

The suit charges that the California

Institute for Women's "AIDS Isolation

Unit" violates inmates' rights to pri-

vacy, to decent conditions of

confinement, and to adequate medical

care. The suit also challenges the segre-

gation policy, which the ACLU

successfully challenged in Gates v.

Deukmejian, as discriminating on the

basis of physical disability.

We have helped prevent state cen-

sorship of AIDS education materials

by supporting community groups in

administrative proceedings. For ex-

ample, our testimony before the San

Francisco Public Utilities Commission

helped defeat a proposal to ban S.F.

AIDS Foundation "Rubberman" post-

ers at city bus stops. We helped the San

Francisco Health Department oppose

new federal regulations which would

have banned any materials "offensive"

to a majority of persons outside the

intended audience. The final regula-

tions, although far from perfect,

deleted this requirement. As education

efforts turn toward harder-to-reach d

individuals, and health workers use

blunter messages, a confrontation here

becomes more likely.

In addition to writing and speaking

widely on the issue of mandatory HIV

testing and discrimination against

people with AIDS, Coles has also

helped many community-based orga-

nizations work out the difficult

problem of how to maintain

confidentiality.

Immigrant

Rights (c)

ECAUSE CALIFORNIA

is one of the states with the

highest immigration rates as

well as an area known for viola-

tions of civil liberties by the

Immigration and Naturalization

Service (INS) and Border Pa-

trol, ACLU-NC staff attorney

Alan Schlosser helped establish

2" a group of immigration lawyers

and activists who meet regularly (c)

around issues of INS abuse. Schlosser

helped draft and lobby for a new

policy that would prohibit San Fran-

cisco city employees (including the

Police Department) from cooperating

with INS agents who were involved in

civil enforcement of the immigration

laws. As a result of these efforts, a new

city ordinance was passed adopting

sy

Vietnamese fisherman Hai Le, skipper of the Romance II, won the right to pilot his fishing vessel off the

California coast.

photo: Richard Gordon