Arthur Eisenberg and Donna Lieberman

00:04 My name is Arthur Eisenberg. I am 73 years old. Today is January 19th 2016. We are in New York City and I am here talking with Donna Lieberman my colleague at the New York civil liberties Union.

00:23 And I'm going to leave Herman Amir 67 years old today, January 19th 2016 through here in Foley Square New York City, and I'm talking to my colleague for legal director at the American civil liberties Union Arthur Eisenberg.

00:43 Okay, so all right when I got to the New York civil liberties Union back in 1989. You were already the Elder Statesman and here we are 25 years later and you're still the Elder Statesman. How was it that you got to the nyclu? What brought you there? And what did you do when you got there?

01:15 I got out of law school. I have been conflicted and going to law school at 2 whether I should go to history graduate school or law school and upon graduating from law school. I decided I wanted to be in the Starion and I decided to go back to graduate school and I was in Colombia during at Columbia during the bombing of Cambodia. I've been very active in the anti-war movement. I found myself standing at a protest in the middle of the Columbia University campus next to a staff member at the New York civil liberties Union. I said to him. I am a lawyer, but I'm not practicing. I'm a student here, but we just close down the school. There are no classes. Can I volunteer he said sending a resume? So I sent him a resume and a few days later. I got a phone call from Paul Sevigny.

02:09 Who said to me that they were starting one of the Black Panther trials would I be interested in working with him on that? And I said sure and so I went to work basically pairing Paul's briefcase during the course of a I think about a six-week trial you'll be interested to know if you don't remember the Conrad Lane was one of the co-counsel in that case and the case ended sometime in the late spring or early summer 92 summer job. So they kept me honest and in turn and then at the end of the summer, they said to me how would you like to come work at the New York civil liberties Union and I said no. I'm going back to school and they said how about 15 hours a week. I said I could do that and 15 hours. Then became 20 hours became 30 hours and by the end of the next it's not next semester certainly in the next academic year. I dropped out of Columbia and

03:09 Came to work at the civil liberties Union. So the 15 became 30 and the weeks turned into months turned into years turned into decade before we go on the panther chase that you were talking about. That was the panther 21 case involving three individuals who were set up by a notch on provocateur who was in their midst to convince them that it would be a good idea to Rob some banks. They never got near a bank, but they were driving along the West Side Highway with guns in their trunk police came and arrested them. They raised entrapment as a defense unsuccessfully and were convicted.

04:01 So what would you say is the most significant or exciting issue or case that you were involved in during the course of your tenure at the nyclu will I think it's some respects. My favorite case was the Island Trees lawsuit that was a case that arose when two school board members from the Island Trees school district, which is located on the middle of Long Island went to a conference in Upstate New York. And at the conference they were given pieces of paper which described objectionable book send the fleet objectionable books were listed by title and author with brief excerpts from the books taken out of context and they take their list of objectionable books and they go

05:01 Back to the Island Trees Public School library the high school library and they go through the card catalog and they find out that there were about ten books that were on their list of objectionable books that were also in the Island Trees High School. Library Bernard malamud the fixer Desmond Morris The Naked Ape Eldridge Cleaver's soul on ice so they go to the principal and they say these books have to be removed and the principal says to them. Well, you know, maybe we ought to read these books. Maybe we should appoint a book review committee to actually read these books and make a recommendation and the principles argument prevails and a book review committee is appointed.

05:54 Book Review Committee goes through the books and recommends that none of the books except for perhaps for two of them. And I can't remember which ones should be restored to the library gate actually be taken out of library in the short-term restored to the library and two of the book should be placed on a reserve shelf for

06:17 Parental approval as a requirement

06:20 And this recommendation goes to the school board and the school board announces that they were be disregarding that recommendation entirely. They'll ignore it entirely and they're going to remove all 10 books from the high school library and and they do that and if they issue a press release and the press release announces that the books are being removed because they are anti-American anti-christian anti-semitic and just plain filthy. That was the magic words that they use at the right standard censorship. We can't remove books from the library and we decided that we would bring a lawsuit.

07:16 And we file a lawsuit in federal district court and the school board comes in and they said, you know, somebody have to make a decision as to what books go in the library and we are the democratically-elected institution within this community and we have the responsibility to make that determination and we've made not a bad argument and end so why is it censorship when we are simply exercising the will of the people?

07:50 And we were left there for with a lawsuit. But without a First Amendment legal Theory to really explain why what happened there was an active censorship, even though we instinctively believe that it was censorship. We had no legal theory that would effectively explain why there was a First Amendment violation with the removal of the books and we started working on the legal Theory as we took the appeal and we developed the legal theory around a concept drawn from an earlier Supreme Court case which held that the government can't exercise their authority to cast a Pall of Orthodoxy was the magic phrase over the classroom. And we said what's going on here is that the school board is seeking to eliminate an entire segment of thinking and they were trying to cast

08:50 Political poll of Orthodoxy over the classroom and that was the theory that we put forward in that case and we make that argument to the three judges sitting on the court of appeals the court of appeals sits in panels of 3 and we win by a vote of 2211 judge basically fines for us under the theory that we advance a second judge found an alternative Theory basically saying that the first amendment requires procedural regularity When government is making decisions and the ad hoc way that the school board behaved in this case violated that principal so we went to the one

09:33 But the school board then asked all of the active judges on the court of appeals to review that decision and I think there was something like the 10 active judges on the court of appeals five of the judges voted for the school board five of the judges voted for us, but a 550 vote meant that the three-judge decision three-judge court decision. I prevailed so we want and the school board decided to take the case to the Supreme Court.

10:06 And we further developed our legal arguments in that case and at the end of the the day when the court when it came time for the court to decide for of the justices voted for the school board for of the justices voted for us to Justice white who said, you know, there's never been a trial in this case and plaintiffs theory that the theory that we advanced in the case basically relied upon a claim that the school board was impermissible motivated in the way that they chose to ban these books and that as a consequence we need a trial and I can't decide this case without a trial. So on the basis of Justice White's opinion the case was sent back to the trial court for a trial and rather than go to trial at this point and explain how and why they chose to ban. These books the school board.

11:06 Shut the box to the shelves. How long does that take? I think the cases started in the late 1970s. It finally was decided by the Supreme Court in 1982. It may have been 4 years maybe five years.

11:24 Will it it it brought?

11:28 It brought together the the the notion of asserting a First Amendment, right and the need to sort of develop a creative argument that supported our natural impulse to regard book removal as as an act of censorship in violation of the First Amendment. There was no clear legal Theory a prior to that case that Mark the way for us to took to litigate. So it's provided an opportunity for for Creative litigation, which we wait between exercise. And so one of the issues in that case a word that that wasn't sort of addressed in in in in that case, but that comes up is is it would have been different if the librarian said I'm going to have I don't want Kurt vonnegut's book here, but I'll take up will leave Tom Sawyer.

12:28 Man and support of the notion of of editorial decisions being made which are very different from censorship. Can you talk about that a little well? Yes and lean as as I thought more about the issue even after the case was concluded. I thought that there might be a better theory that might be employed looking to principles of academic freedom. And so the problem wasn't so much with the motivation of the board. The problem was that the that the board was using the power of the purse its control over the capacity to buy books to supplant the academic judgment that should have been left to the academics to the principal of the school. And in this instance to the librarian and that became a theory that we subsequently used.

13:28 In the Brooklyn Museum case because in the Brooklyn Museum case, you'll remember when mayor Giuliani was unhappy with a particular artist or a particular piece of art that Sensations exhibits at the black Madonna with with breasts made out of elephant dung that offended Giuliani and he decided that he wanted that exhibit at least that that piece of of art to be removed and he went to the board of trustee went to the directory went to the curator. They wouldn't yield went to the board of directors of the of the Board of Trustees of the of the eye Museum and they would yelled and then he threatened them with loss of of financing. There was a capital expenditure that had been promised to the museum that I think the museum rented the facility from the city.

14:28 New York so we try to impose sanctions for their refusal to withdraw that that piece of art and and ultimately we filed a friend of the court brief in that case making an argument of the sort of suggested emerging out of our Island Trees experience. But the argument was that just as government cannot use the power of the purse to dictate the content of curriculum in academic settings. So too they can't use the power of the purse to try to dictate curatorial judgments made by Young Thug. I made by a curator Zin city-funded art museums and just as academics have an academic freedom right to make the decision soda curators have a curatorial judgment right to make the decision. So whatever happened to the sensation exhibit & Giuliani law.

15:28 That case before the district court. He took an appeal to the to the federal court of appeals and my memory was that he withdrew the appeal and never fully pursued it and so didn't he appointed decency commission to review of art exhibits in in city-funded museum another institutions and you know, whatever happened to that. You're right about that, but I don't think they ever did anything. Well, I remember that one, but it was because some giuliani's term was up and the mayor who succeeded him Michael Bloomberg the first thing that he did when he came into office was to just stand the decency to Mission and I remember thinking haha. We have a mayor who understands the First Amendment. I'm he did for a while.

16:28 But they were there more stories to tell about how the Bloomberg Administration. With protest activity but let's not go there quite like one of these I'd like to ask you kind of what what are the big what other issues are huge in your mind that the civil liberties Union has addressed over the years were or needs to be addressing that that are essential to the theory the viability of our democracy sure, you know, I think one important issue that surfaces these days and actually has been around for quite a while is the problem of political gerrymandering

17:22 And up it's a it's an issue that that has.

17:29 Been difficult for the courts to address in part because

17:37 These claims of political gerrymandering challenges to districting Arrangements where legislative districts are drawn in a way that support the results in favor of either a particular political party or an incumbent lend themselves to a variety of of legal theories and and political science theories on but the court has found it and Supreme Court in particular has found it very difficult to wrap its arms around those theories because they're all rather complicated and is always occurred to me that there was a simple way of thinking about the problem of partisan gerrymandering the political gerrymandering and it relies on a very straightforward metaphor if if it turned out that the state legislature was

18:37 Buying election machines voting machines and and playing with the voting machines in a way that would for ordained the outcome in favor of a particular party or a mix of a parties and in favor of incumbents. We would all understand that what the legislature was doing is wrong. It violates some notion that when government is administering elections, it has an obligation of neutrality that has an obligation to play fair and yet that is precisely what takes place when the legislators whether they be the state legislatures on the state level or local legislatures draw district lines in ways to for ordained or skew the outcome of the election in favor particular incumbents or in favor of particular political parties or in favor of a of an arrangement, where where

19:37 The Democrats might control one house of the legislature in the Republicans the other all of that seems to violate the basic notion of neutrality. And I think it's an issue that has has persisted for a long while and one that needs to be needs to be addressed. Terry man during is American as apple pie isn't doesn't get its name from what's his name Elbridge Gerry or Jerry the governor of Massachusetts back in the day Colonial day of the of the Declaration of Independence or but Circle or present present present during the Constitutional Convention. Gerrymandering is a long-standing tradition, but it was wrong then and it is especially wrong now because it affects the outcome of our democratic governments in in unfortunate and adverse way.

20:37 Has have course ever dealt with this some with it being lazy and Furious you are talking about there was a case that went to the Supreme Court coming out of Indiana in the mid-1980s and I wrote a brief for the ACLU in Amicus brief articulating of this a metaphorical view of treating this no differently from the legislature trying to tamper with the voting machines and that case was ultimately decided on other grounds, but the court at that point showed some receptivity to the notion that one could challenge political gerrymandering the case then went back up that issue rather went back up to the Supreme Court in the number of subsequent cases and the court ultimately concluded in those other cases in

21:37 Very fact-specific ways that the the case is presented what we're called political questions that they did not lend themselves to judicially manageable standards for evaluating when political gerrymandering was impermissible. And also what the remedy should be Justice Kennedy in those cases though continue to keep the door open to some future litigation because he was not prepared to close his mind to the possibility that there might be a wave of addressing these issues. So you're talking about voting of course raises issues of of one-person one-vote and and racial discrimination in access to the ballot. They the the the tools to fight racial discrimination in our country have changed dramatically have been Limited.

22:37 A lot. I'm over the decades wouldn't that you've been at the nyclu? I can you talk a little bit about sort of where you see us in terms of it is fighting for racial equality and particularly the school's the the legal standards have changed and the Court Supreme Court has made it far more difficult to address the persistent problem of racial discrimination in this country and I'll explain in a moment while I but but the problems persist and way back in the in the late sixties the Kerner Commission road report that identified a pattern I cycle of discrimination and disadvantage and it proceeded along the following lines. We had several gated Reza.

23:37 Central patterns which led to racially segregated schools which led to unequal Educational Opportunity which led to disparities in income which reinforced segregated housing patterns and and the Kerner Commission decried that cycle of discrimination and disadvantage and then and that cycle continues yet today. So it seems that that that cycle needs to be addressed by the ACLU and by other organizations and the cycle of course have its roots in slavery and they Denial in the first instance. When we abolish slavery of a promise of or the possibility of 40 acres and a mule it does but I think it got considerably worse over the course of years of

24:37 Of of migration and and movement and the movement out of the inner cities to the to the suburbs that occurred in the in the 50s and 60s reinforcing the worst aspects of it. So it's very much needs to be addressed. And if one thinks about that cycle, the one institution that is genuinely controlled or commonly controlled by the government or the education system is the education system schools. And if we want to break that that Nvidia cycle of discrimination and disadvantage, that's the place where there's the most capacity the greatest capacity to do something so, you know, and I know that it's recently been reported that New York State led by New York city has the most racially segregated school system in the country. This is 20.

25:37 16 what you going to do about it? I think we need to do something to issued by UCLA and Gary orfield contain some devastating statistics something something like 30% of black and Latino children attend what are essentially apartheid schools that is to say schools with fewer than 1% of its population being white and kids who are black and Latino about 50% of them attend schools that have fewer than 20 or 30% of the student population white so that so that the the racial isolation the racial segregation is pronounced there are mechanisms to to to seek to address those. They are in the past Magnet School.

26:37 Lowe's have operated reasonably successfully we litigated the Buffalo School desegregation case in the 1970s and developed a system of magnet schools that was looked to around the country as a model for how to go about desegregating school system in some communities though. The issue has to be addressed at the elementary school level in other communities. It may need to be addressed at the high school level. These are issues that we are looking at and with a view towards towards seeing what we can do to do to address the problem. Is it harder to take on the issue of racial segregation in our Public Schools today? Then it would have been safer 15 years ago 20 years ago or maybe 30 years ago in the court has basically moved and this is sort of the whole issue with affirmative action as well as December.

27:37 The court has developed legal doctrine that that erect a very strong presumption against race as a basis for governmental decision-making and just to sort of think about affirmative action for Mom because that issue is now back before The Supreme Court this year the the the doctrine emerged out of what was a well-recognized and justifiable position that race.

28:20 Race-based decision by government should be suspect because they're impermissibly motivated and and they can lead to when they are impermissible motivated. They can lead to two significant disadvantages, but the court has had the opportunity to draw a distinction between what might be invidious discrimination racially malevolent discrimination and benign discrimination. The the the notion that one might be using race as a basis to promote equality and and the court rejected that that opportunity and for declined that opportunity and as a consequence, the law has developed in ways that make it very difficult. Because because the court has erected such a strong presumption.

29:20 Just using race as a factor the court continues even as it has done this though. The court has continued to acknowledge that where the use of race is necessary to respond to past histories of discrimination that in that circumstance race is an appropriate a vehicle. Let me think about Brown V Board of Education that their race was explicitly used in response to what had been found to be unlawful discrimination intentional discrimination malevolent discrimination, and the court has has has found that be acceptable and even in the most recent decision by the Supreme Court in the Seattle School desegregation case in 2007. The court acknowledged that if race is being used to remedy past discrimination it will be

30:20 Build so you've been practicing law at the New York civil liberties Union your entire professional life. Who does that these days stays in one place for so long? How come the work continues to be engaging and I think it become continues to be engaging for several reasons first. There was the broad variety of issues that we address I think in some respects. We are unlike any other public interest organization. We do Free Speech cases, we do racial Justice cases. We do voting rights cases. We do LGBT cases. We do women's rights cases. We do immigration cases. So there is a broad range of issues that we are called upon to address. So it never gets old and never gets stale because of the broad variety of work that we do second as suggested by the

31:21 The Island Trees case and then the Brooklyn Museum case there are real opportunities to engage and inventive and creative litigation because of the nature of the work that we do because we are working often in areas where there is no precedent where we're relying on our our instincts are impulse and we have two fat and legal Doctrine to match those instincts third the role that the New York civil liberties mute plays the role that the ACLU plays in certain maintaining the proper balance of constitutional commitment retains its importance and will always retain its importance because they will always be on the part of government and instinct to move away from the commitment to civil liberties.

32:21 That's in the nature of majoritarian government and we have to provide sort of the rubber band in the sense of hope with the count exercising a countervailing force in response to the efforts to move in opposite directions, and we're constantly called upon to to to play that role and then finally perhaps most importantly there's the opportunity to really affect people's lives in important ways so that for example, when we address the inhumane conditions under which individuals are held in solitary confinement when we address children going to school and then finding themselves arrested for having been possibly disruptive in the classroom or speaking back to a school safety officer and when we can do something about that, we are helping people in there.

33:21 Realize when we represent a lesbian couple who who experienced the indignity of being denied the opportunity to have a wedding in a public facility because the of the people who own the public accommodation are opposed to that marriage and we successfully represent them. We we have the opportunity to do good for individualism. And I think it's it's the combination of those four four elements that make the work constantly engaging so though I get old the cases never get old don't you feel sometimes like it's a privilege to be able to do this for a few call. It it affecting people's lives. I mean tell me you feel sometimes like we make history.

34:17 Like with Edie Windsor, for example or the solitary confinement case, you know overhauling really fundamentally, you know, the use of solitary confinement in New York City prisons near state prisons what we do make history, but we make history in a way that helps individuals and we make history in a way that maintains a constitutional balance in this country. So we're doing both of those things.

34:50 Talk to yourself right when you started at the nyclu.

34:58 Well, you know when I first started at the nyclu as I said, I worked on this black panther case and then in the first year that I was at the nyclu I worked on three lawsuits challenging the constitutionality of the Vietnam War. And as I look back on that experience, I I I think how naive I must have been and how naive we all were working at the New York civil liberties Union to think that we could stop the war with a lawsuit and one of the things that I have learned over the years and one of the things that

35:44 Donna Lieberman has brought to the New York civil liberties Union is the notion that you can't just litigate lawsuits. They are not the sort of free standing exercises. They they have to be done in conjunction with advocacy with legislative efforts with changing people's minds as an changing culture cultural attitudes as part of the effort and and and and I think that is one of the things that we've done more successfully in recent years.

36:22 So what was the most fun thing you ever did at the nyclu last worth?

36:36 As I said, I think the Island Trees case was probably the most interesting because of the evolution of developing the legal Doctrine in support of it. But there it's been it's been a wonderful effort. How about appearing on stage with Broadway actor Broadway Santa for freedom?

36:57 You two have known each other for so long.

37:00 What do you first remember about each other?

37:03 First impression

37:09 Well, I remember when I got to the office back in 1989. It was a tiny place. It was we were in Times Square and there must have been 10 people on staff and I remember art was the legal brains behind the whole operation and he was just so I remember you are where the legal brains behind the operation and you know what I said, you have a lot more help these days, but I remember your passion and your commitment than I remember.

37:56 A trip that we took to Rochester.

38:00 Where we were making a pitch for Reproductive Rights.

38:06 And I had been up all night writing a brief.

38:12 And and it was your energy. I think that kept me awake cuz otherwise I would have collapsed.

38:25 Well

38:28 Got a couple of a couple more minutes and I'm getting

38:32 Something that you like that leave for the record for the record.

38:41 Yeah, so how has how has that the changes in the in the way the nyclu does its work are partly a product of sort of changes in the law. I mean it's a lot harder the courts a lot more conservative and and you can't get so much out of them. So it's not a matter of necessity. Well, it is certainly the case that

39:10 Litigation has become more difficult now and it's not only the courts the courts have had become more conservative, but our adversaries have actually become more sophisticated in their response. So have we we wait we file lawsuits we go to the Albany. We have a Communications plan. We know how to do sound bites, and we win one now, and again if we had that approach back then maybe we could have stopped the war in Vietnam. Are you? Okay? Thanks.