ACLU Is Still Finding Success in Courts but Not in the Court of Public Opinion

The issue was prayer. Most of the graduating seniors at Peters Township High School wanted it. One, however, did not, and with the help of the American Civil Liberties Union sued to stop any public prayer at this year’s graduation ceremonies.

In the end, a statement was added to the program, forbidding prayers. But valedictorian Kerry Ann George, now at the U.S. Naval Academy, ignored it; when she began her speech with “Dear Lord,” the crowd boomed its approval.

“ACLU Didn’t Have a Prayer,” the next day’s headline read.

And so it goes in the court of public opinion, where the ACLU is often on the losing side--even as it racks up victories in the courts of law.

These are tough times for the ACLU. In its 75th anniversary year, the nation’s leading civil liberties group faces a conservative political climate that is forcing it to refight battles it fought years ago.

Its clout with the Republican Congress is next to nil. It swims against the tide in opposing plans to crack down on hateful computer speech, amend the Bill of Rights in favor of school prayer and broaden police power in response to the Oklahoma City bombing.

“Here we are, actors in a rerun, with all the rights won in previous decades threatened again,” the ACLU said in its most recent annual report.

But beyond that, many critics--citing cases ranging from creation science, to HIV testing for newborns, to forced showers in gym classes--say the ACLU is increasingly irrelevant, trigger-happy or just plain off the wall in its defense of the U.S. Constitution.

“Sometimes I wonder whether we’re belittling the damn document with all these lawsuits,” said Lee Price, attorney for 18 school systems and a frequent adversary of the ACLU’s contentious Pittsburgh office, which sued Peters Township High School.

“If I were a taxpayer, I would be worried about everything the ACLU has been up to,” said Michael Dorezas, attorney for central Pennsylvania’s Hollidaysburg schools, which the Pittsburgh ACLU threatened with a lawsuit over a forced shower policy.

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But ACLU officials are unrepentant. The heavy workload of ACLU attorneys, says Pittsburgh ACLU Executive Director Witold Walczak, “just means that we are doing our job.”

In a way, the ACLU was founded on unpopularity. When Roger Baldwin and others established the organization in 1920, it was an outgrowth of efforts to defend pariahs--World War I’s conscientious objectors.

The ACLU has always defended the rights of the individual under the Constitution, even when those individuals or their causes were unloved. In 1978, when the ACLU defended the right of Nazis to march through Skokie, Ill.--home of many Holocaust survivors--members quit and donations plummeted.

Since last year’s elections, ACLU officials say they have seen a slight increase in members, similar to the boost after George Bush criticized opponent Michael Dukakis in 1988 as “a card-carrying member of the ACLU.”

An ACLU spokesman, Phil Gutis, said he could not provide membership numbers beyond a ballpark figure of 275,000 households--a figure that Gutis said has held steady for about six years.

Contributions also have held steady in the 1990s. In 1993--the last year for which figures were available--the ACLU took in $9.17 million and the separate ACLU Foundation received $13.51 million.

But if membership and cash flow have been steady, life within the ACLU remains volatile. Writer Nat Hentoff, a former member of the national board, quit in April after 38 years with the organization because he objected to its opposition to mandatory HIV testing for newborns.

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Hentoff said the stance could have been deadly if babies had the AIDS-causing virus and went untreated; the ACLU said such tests were an invasion of the mother’s privacy.

“The ACLU should be above special interests. Instead, it was almost a direct accessory in letting thousands of babies die,” Hentoff said.

Meanwhile, the ACLU has given the back of its hand to some other friends, criticizing U.S. Rep. Barney Frank (D-Mass.) and ACLU Medal of Liberty winner and former congressman Don Edwards, a California Democrat, in a fund-raising letter.

The ACLU reproached Frank for compromising on the Clinton administration’s “don’t ask, don’t tell” policy for gays in the military. Edwards was rebuked for his involvement in a bill expanding wiretap power.

“We’re paid to call them like we see them,” said ACLU Executive Director Ira Glasser. “We are not an arm of the Democratic Party. . . . You can’t be afraid to criticize your friends. Otherwise you would have no credibility.”

Except that the ACLU has enough trouble finding its friends in Washington. “The ACLU is going to have some tough sledding in this Congress,” said Oliver Thomas, an ACLU ally and lawyer for the National Council of Churches.

The trade journal Legal Times recently said the ACLU is increasingly out of the loop on civil rights legislation. Smaller groups such as the Electronic Frontier Foundation, which argues about access to the Internet, take up some slack with the ACLU’s blessing.

Glasser said the ACLU will attempt to communicate directly with Americans more and lobby Congress less.

To do so, the ACLU opened its Constitution Hall icon at the America Online computer service’s introductory page. Police investigations of militias have been a hot topic in a free-speech forum that is modeled after town square speakers’ platforms.

The ACLU remains a power to be reckoned with in the courts. Most recently, it handled the case of Shannon Faulkner, the first woman admitted to The Citadel military college in South Carolina, albeit briefly.

Most cases are taken up by 53 big-city chapters, which file suits on their own, without the blessing of the New York headquarters. Often, an aggrieved party pages through the phone book in search of help, which leads them to places such as the ramshackle Pittsburgh office--much to the dismay of those who get stuck with the bill.

A federal law forces any defendant in a civil rights lawsuit to pay a plaintiff’s legal bills even if only one small part of his or her case is won. The Pittsburgh ACLU’s Walczak denied that the law makes the ACLU more likely to sue; he says he has turned down many supplicants.

Even so, “they’re not always picking the right causes. To me, taking showers is not a big issue,” said Stephen Russell, chief counsel for the Pennsylvania school boards’ group.

The magnitude of the issues is in the eye of the beholder. Warren Kooi, a visiting lecturer at the Moon Area School District near Pittsburgh, said his encounter with the ACLU’s lawyers “definitely was frivolous.”

In 1994, in a biology lesson, Kooi mentioned the magic word: God. He claims his talk about creation science was an alternative to scientists’ explanation of man emerging from the primordial ooze.

“The way schools are set up now, kids have no alternative to the education of evolution,” said Kooi, the district’s technology coordinator. “What I was trying to do was lay out all the facts and let them decide for themselves.”

But two ninth-graders say Kooi was more preacher than teacher, objecting in particular to tales of Adam and Eve and Noah’s ark.

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The ACLU sued on their behalf. Six months later, Moon Area educators agreed not to teach creation science as fact in their science classes--something that school attorney Price said they never did anyway.

The ACLU has its champions--people who say the price of liberty is eternal vigilance, and eternal vigilance doesn’t come cheap.

But for every champion, there are critics. Ken Gormley, a constitutional law professor at Duquesne University in Pittsburgh, stopped working for the ACLU after its protracted fight in the 1980s to prevent the placement of a Christmas tree at one Pittsburgh government building.

The lawsuit, he said, was not worth the effort.

“I went in to vote the other day, and I just had to laugh. I noticed that the polling place had Bible quotes on the wall--it was at a church,” he said. “I had to wonder, ‘When will the ACLU try to shut this down?’ ”