NYCLU Executive Director, Donna Lieberman, on Civil Liberties and Our New Normal

About This Episode

At no point in recent history has civil rights been so loudly at the forefront of everyday life, in multiple ways. The tidal wave of shared trauma ushered in by the Covid-19 pandemic and the recent slew of racially motivated murders presents glaring questions  and implications around civil rights and how this moment can be a springboard for true systemic change. As an expert in policies, laws and all facets of civil rights, Ms. Lieberman discusses the implications of this time period, how it relates to other historical moments in civil rights and the myriad of nuances that comprise this complex, but powerful moment in human history.

About Donna Lieberman

Donna Lieberman has been executive director of the New York Civil Liberties Union since December 2001. Under Lieberman’s leadership, the NYCLU has expanded the scope and depth of its work, supplementing litigation with an aggressive legislative advocacy and a field- organizing program. As a result, the organization is widely recognized as the state’s leading voice for freedom, justice and equality, advocating for those whose rights and liberties have been denied. 

Lieberman began her public interest legal career as a criminal defense lawyer in the South Bronx office of the Legal Aid Society, and she later acted as executive director of the Association of Legal Aid Attorneys. For several years, she served on the faculty of Urban Legal Studies Program at City College. She Joined the NYCLU in 1989 and became the founding director of its Reproduction Rights project.

Transcript

Vanessa:

Welcome to The Social Change Diaries, the show that looks behind the curtain at everything you want to know about the social justice and nonprofit landscape. I’m your host, Vanessa Wakeman.

Vanessa:

On today’s episode, I’m going to be speaking with Donna Lieberman, the executive director of the New York Civil Liberties Union.

Donna:

Hi. How are you? Thanks for having me.

Vanessa:

Thank you for joining us. Each season for the podcast, we focus on a different topic or theme. I wanted to talk about the next normal and was looking for people who had different perspectives about what we should be expecting around our way of life, whether that is specific social justice issues or just patterns in behavior. As someone leading the Civil Liberties Union, I thought that you would be a fantastic person to have a conversation with about some of the issues. Before we jump in, Donna, why don’t you tell us a little bit about yourself?

Donna:

Sure. I’m delighted to chat with you today.

Vanessa:

Thank you.

Donna:

I’ve been the director of the New York Civil Liberties Union for about 20 years, but who’s counting? The New York Civil Liberties Union is the ACLU of New York. We are one of 50-ish affiliates of the ACLU around the country. There is a separate national ACLU office. Our mission has historically been defined as defending and protecting the rights and liberties that are codified in the United States Constitution, the Bill of Rights, and the post-Civil War amendments that abolished slavery and established the right to equality and the right to vote. I say that because, whenever you reference the Constitution, you have to say, “And we reject the legacy of slavery and the foundation of our country in slavery.”

Donna:

The New York Civil Liberties Union has a theory of change that uses litigation, impact litigation primarily, to elevate and change issues and policies that are harmful to, particularly, people of color, people who are vulnerable and targeted by virtue of a whole range of things, disability, gender, and sexual orientation, gender identity. We don’t rely exclusively on litigation, which is something that the [inaudible 00:03:11] kind of did. We also have a strong advocacy and lobbying component. We work in the state legislature. We work in local government. We have eight offices around the state in the key metro areas. We also do extensive public education and organizing.

Donna:

We have an integrated approach to issues. Sometimes we’re only litigating to raise the profile of an issue, but more often than not and our most significant and long-term campaigns have involved [inaudible 00:03:48] of the tools that we use to achieve change. We recognize that passing a law or winning a lawsuit may be an important victory, but none of these victories is lasting unless we put in place the mechanisms to ensure that a theoretical promise, which a law could be, is actually implemented on the ground.

Donna:

I say that because, in recent years, we won, for example, after many years of litigation and a lot of advocacy, a meaningful right to counsel in New York State as a matter of state constitutional law. Well, that came on top of a ruling from the Supreme Court in Gideon versus Wainwright that you have a right to counsel when you’re charged with a crime, but somehow in New York for decades, people were appearing in front of judges charged with crimes without lawyers. When does that right to counsel begin? When, actually, does it take on meaning?

Donna:

It required additional litigation but also required us to be engaged in statewide monitoring and advocacy to make sure that there was funding and a mechanism in place to ensure that lawyers who were funded by the state to provide legal defense met certain standards, had certain training, et cetera. That’s just one example of what we say, at the ACLU, is the fight for civil liberties never stays won. You have to fight it over and over and over again.

Donna:

In the new normal or the next normal, as you call it, I think that I would be surprised if anybody has an answer to what life is going to look like or what we need to be doing because I think nobody probably expected that the groundswell of wokening that has occurred nationwide would ever have happened. Those of us who have been fighting these fights and screaming from the rooftops, who are trying to reason with anybody would listen about the depths of racism in our country, the need for transformational change in policing, who would have predicted that there would come a point where the murder of a black man captured on video would actually do what it should have done with Rodney King, with Michael Brown, with Eric Garner? But it has.

Donna:

I think we’re at a moment in time that nobody could have expected, and it’s a moment built on enormous pain. It’s a moment that has created enormous trauma for black people all over the world, I think, certainly all over the country, and for, I think, allies, people of good will, anybody with a heart or a soul. Maybe that moment has been made possible because the enormous trauma that the world has been going through together in fighting off COVID pandemic, but we’re in a moment now where a lot of change is possible.

Vanessa:

You mentioned nobody could have predicted the wokeness or the awakening or the reckoning that we are seeing right now. Do you think it’s the shock, and awe, and anger, and rage around seeing that video, or was there something else boiling under the surface? Because when we look at this, we’ve had protests before. This is, unfortunately, not the first occasion where a black man was brutally murdered and we were able to see that, but we see more diversity in the protests and outrage today. There are more white people, quite frankly, coming to the forefront saying, “No. This has to stop.”

Vanessa:

What do you think it is that caused that? Is that just a visceral emotional reaction, or do you think there is some other external influences that caused this shift that we’re seeing?

Donna:

I will be honest with you and say I don’t know, but I have some thoughts about it. I’m happy to share those thoughts.

Vanessa:

Please.

Donna:

I don’t claim any particular expertise. I think it’s a lot of things. There has been a lot of groundwork done to identify the practices and polices that create a inequality in this country, the stories, the narratives of individuals who have lost children, loved ones to police brutality, whether it’s Amadou Diallo’s mom, Madame Diallo, which was 20 years ago, or Ramarley Graham’s mom, Connie Malcolm, or Gwen Carr who have been telling the very personal stories of the pain that they have suffered but who have also been standing up and fighting back and turning their pain into protest. They are a force to be reckoned with, certainly, here in New York and around the country, your Trayvon Martin’s mom and so many others. It’s no accident that it’s the moms who are the voices for their children, for the families.

Donna:

Also, the Trump regime and the unbridled, unmasked racism and greed and corruption that is just oozing in every stupid thing he tweets, and they say, and the toadying by and collaboration of the entire or much of the Republican power structure is really… While it’s caused enormous pain, it has also made the reality of what our country is about and has been about dark. I think that what we see is that the power of and the influence of Wall Street, big pharma, big money in every sector of our lives and the get-along-go-along politics, appease and win support from whoever the lobbyists are, has put us in a situation where inequality, economic inequality, is just like, whoa, I mean what is going on here?

Donna:

When Occupy Wall Street happened and there was the inequality of wealth was really first in the mainstream political discourse and something that people felt they had to address, that’s a building block for what we have today because that inequality is, yes, gross and devastating. It’s also racial and racialist. You can trace it to a lot of policies, but one of the… Perhaps the biggest through line in history that brings us to the point that we’re at today is slavery and the failure of our country ever to come to a reckoning with the legacy of slavery.

Donna:

It’s not like nobody’s ever said this before. People have said it, but acknowledging it and understanding how that manifests itself is news to a lot of people, and people are ready to hear it. I think that’s part of what makes this a powerful moment. I mean we were fighting, for years, for paid sick leave. We’ve been fighting for access to healthcare. All of a sudden, through the pandemic when it really matters, when people understand that this is not about some fraternalistic, take-care-of-people-who-we-don’t-really-care-about approach, but this is like, “You know? Gosh, we are all in this together,” in a very selfish way, the well-being of the least among us is directly related to the well-being of the fattest, and greediest, and wealthiest, and most privileged.

Vanessa:

As far as what you said about what the pandemic has exposed, like healthcare inequality, et cetera, what’s the… I don’t want to say… A teachable moment isn’t the right language, but what do you think this has the potential to shift for the long term? We’ve all seen those instances where people have their, quote, unquote, moments of outrage. The women’s march back in 2016, we saw everybody going to Washington. They had on their pink hats, and everybody was just angry and fired up and, “We’re not going to take this anymore.” In many ways, that died down. People returned to their regular routines, “Oh, maybe it’s not so bad,” or maybe like, “I don’t have the fight,” or just it wasn’t sustained.

Vanessa:

Now, with COVID, when we’re seeing these very specific examples of how this pandemic has disproportionately impacted communities of color, what’s the next step, and how do we sustain that? We were saying we’re hearing from the experts that this virus will continue to plague us. It’s going to take some time for them to develop the vaccine. There’s a possibility of a second wave. We see numbers going up in various states. How do we make sure that we don’t lose the urgency of this moment and use it to create long-term changes to just our way of life? What policies are in place? How do people who are undocumented… What are their healthcare options, of if people who are unemployed or underemployed, making sure that they have access to it so that we can shift some of these imbalances?

Donna:

Part of this depends on our movement, whether we, as a movement broadly defined, can remain a movement broadly defined or whether we will go the way of too many movements, which is to… I think of it as a funnel, whether we’ll turn into a funnel and only those who are loudest, most extreme and pure will be left standing, and everybody else will turn off.

Donna:

I think one of the biggest challenges for us, as we build political power, is to figure out how you deal with difference, how you deal with conflict, and how you focus on common ground and build the muscle to, I hate to say it, compromise. That’s a challenge.

Donna:

Another challenge, I think, is to figure out how we identify short-term goals, medium goals, and long-term goals and recognize that, whenever we engage in that kind of strategic planning enterprise, we have to make sure that that doesn’t take over from actually doing the work of achieving the change that we can believe in. When it does take over, it becomes navel-gazing. We have to be both mindful and active.

Donna:

We at the Civil Liberties Union are thinking about what our strategy is. Right now, in New York City where we’re based… but we have a statewide presence, of course. Right in New York City, we’ve done a lot of work around education focusing on the massive criminalization of school discipline. One of our priorities is to get cops out of school.

Donna:

Now, I have to say that, a year ago, hey, a month ago, we weren’t talking about getting cops out of the New York City public schools because we didn’t think that there would be any support for it, that there would be investment in that, that people were ready for that, but now people understand that, when you police things to death, you turn people into criminals whether they are or not. For kids, of course, that is devastating.

Donna:

Even though we have made progress in New York City during the course of the de Blasio administration in educing the criminalization of child misbehavior, we haven’t accomplished enough, so we see this as the moment to get rid of those goddamn metal detectors in schools and the roving metal detector plan program that is the stupidest, most… It says it all. We want to take kids by surprise and so that, if they show up with something bad, that we’ll catch them, and that’ll make them be fearful for all the time, so they’ll never bring a box cutter to school and to replace that massive investment in law enforcement approaches to kids to kids’ development to learning to conflict resolution with things that work with kids, which is conflict resolution, training, restorative justice, supportive things, firmness.

Donna:

I mean nobody wants schools that aren’t safe. Nobody wants kids who engage in antisocial behavior to get a pass, absolutely not, but whether you should be [inaudible 00:18:33] to the ground for being in the hallway without a pass between classes because you stayed late to finish your chemistry exam, well, we don’t want that either. By the way, I didn’t make that up. That comes from a real case that we had. I’m not nearly that creative.

Donna:

This is a moment, and we are pressing hard for the city to strip $1 billion out of the police budget and invest that money in kids, in communities. There are people like Erica Ford who are engaged in community-based violence interruption. When you listen to Erica talk about the work that they are doing, it is hard, painstaking work. We’re not, as a society, certainly as a city, prepared to get rid of the police and turn over everything to Erica. She’s not prepared to take on violence interruption and law enforcement all over the city and the state, but if we build that muscle and recognize that the stupid-ass broken-windows policing approach to life, which was the war on drugs on steroids that was brought to us courtesy of Giuliani, put on steroids by Bloomberg and really never abandoned by de Blasio. If we replace that with the community support mechanisms and support for groups like Erica’s, I think that we’ll make a significant amount of progress.

Donna:

When Giuliani transferred school safety to the police department back in 1998, there were 1,000 school safety officers. Now there are 5,000.

Vanessa:

Oh, wow.

Donna:

There are double or more the number of school safety officers than guidance counselors and social workers. We have to stop this. I guarantee you the next time there is a brutal crime on the streets of New York City or any place in the state, we will have the politicians saying, “We need harsher laws.” They’re going to pass some criminal statute to deal with it instead of taking the harder and less politically short-term helpful approach, which is how do we address the problem?

Donna:

Our homicide rate is the lowest it’s been and has been for several years. It’s been really, really low, and that’s wonderful, but the stubborn component of the homicide rate relates to domestic violence. I mean we’ve been policing that one to death. Even many domestic violence advocates talk about we need harsher laws. That’s not the answer. Some of this is intractable, but some of it is not. We need to have more thoughtful approaches.

Donna:

Issues of mental health and mental illness are devastating. They’re devastating to families who have loved ones who suffer this horrifically debilitating illness and often unpredictable illness. It’s debilitating to society. People are legitimately fearful when they are confronted with people with mental illness, and it’s dangerous sometimes. How do we, as a society, deal with it? How do we provide mental health services so that families are not left on their own, so that mentally ill people are supported to be as productive as they can be and to get the treatment resources that they need, so that the people who need residential programs get them but those residential programs are not turned into warehouses where they’re treated like zombies or turned into zombies?

Donna:

I mean the mayor claimed that he was taking on mental illness and mental health, a massive issue that was a total bust because it was narrowly-defined and it was put in the hands of… Instead of mental health professionals, it was put in the hands of his wife. I mean you want to do something real, let’s call in the professionals to do this, and let’s not look for quick fixes. This is a big problem.

Donna:

We could go on and on. Housing, we have this ridiculous, maybe well-intentioned process where you can’t site facilities without this whole community process, but it’s an invitation for people to say, “Not in my backyard.” Well, your backyard has problems, and your backyard has to provide solutions as well. I think there’s been a lot of political lack of will.

Donna:

Let me get back to policing a little bit. Well, I talked about cops in schools, and that’s an issue statewide, the NYCLU is advocating to get cops out of schools statewide. It’s less intractable a problem elsewhere in the state because there’s no place like New York City in terms of cops in schools. I mean, standing alone, the school safety division of the NYPD would be one of the 5 or 10 largest police departments in the country, a lot bigger than places like Boston, for example, and that’s just a school safety division. We’re working on that issue statewide.

Donna:

In terms of policing in the criminal legal system, the parole system is so draconian. Instead of people getting out of jail faster having done well in prison and being ready to be released and needing support and being provided with supports upon release, we treat people who are paroled after a very challenging process as like, “Well, you’re on parole, but you’re still ours.” It’s like, “We’re going to get you back in here if you screw up in the slightest fashion.”

Donna:

We have to overhaul that system. We have to make it about supporting people to reenter society and to eliminate this, “You’re going to go back to finish your entire sentence,” mentality, so people, if they get picked up on a minor offense like shoplifting or possession of drugs and we have to really invest in… Instead of fueling the upstate economy with more prison guards, we have to fuel the upstate economy with things like science and education and provide support services for people to reenter society. That is all about race because we know that the people who are thrown into our jails and who inhabit our jails are overwhelmingly black and brown.

Vanessa:

Going back to what you said about trying to remove police from schools and how… I thought that it was interesting that you said, a month ago, this issue was equally as important and urgent, you just didn’t think you could get any movement on it or you’d be met with a lot of resistance, and that’s changed based on the current conversations and the narrative that we see playing out in front of us. What other issues have been pushed to the forefront that you believe, because of COVID and because of what people are experiencing and observing, that there is a potential to move the needle on that may not have felt possible before?

Donna:

Yeah. I mean I think that access to healthcare and the rights of employees to time off and to safe working conditions are issues that people have woken up about. When we were first engaging with the state on a women’s agenda for New York and proposed paid family leave, I remember the governor’s office saying, “Nobody’s interested in that. We’re not ready for that.” Well, not only are they ready for that and to have them pass that, but the notion of paid sick leave for employees, regardless of the size of the shop, is something, and that being important for the well-being of society, that’s huge.

Donna:

I mean I think issues about child care have become… are teed up and ready to go in a way that they haven’t been because, during the lockdown with people having to work remotely, if they are lucky enough to have a job, are realizing like, “Oh, my God. Child care, that’s important.” I think those issues are teed up.

Donna:

I’m going to go back to criminal justice because I think that recognizing that, yeah, we want to save people who are in prisons, save the lives of people who are in prison during the epidemic and the most vulnerable being people with medical conditions and the elderly… What is the point anyway of keeping somebody who’s 65 years old and has already spent 20 years and even if they did a horrific crime back when they were 25 years old? Does it serve any government’s interest to ever, ever, ever let them emerge deemed rehabilitated, or is it just about vengeance and what good is it for society?

Donna:

I think there is potential for significant change in our criminal legal system in terms of how we deal with, how we treat prisoners and breaking down the, “Well, we’ll do things for nonviolent offenders, but people who committed violent crimes, we’re going to throw them in the garbage for life.” I think there’s a recognition of the need for restorative justice, a need for respecting rehabilitation and for humanitarian relief.

Donna:

There’s one issue that hasn’t gotten attention, but I think this is a moment when maybe it can. The New York Civil Liberties Union just won a major voting rights lawsuit against the East Ramapo School District where the public schools are 95 to 99% black and Latino. The private schools, they are 99.9% white. The public school board is controlled through an at-large voting system comparable to what they use in the segregation in the South that is controlled by the white community 100%. We just won a lawsuit challenging the at-large voting system, and the court ordered them to come up with a ward system so that communities could get, at least, representation.

Donna:

The white community outnumbers the black and Latino communities and may well still retain of the school board, but this is a situation where a once-phenomenal school district that was a place that black and Latino families moved to to send their kids to these schools up until 2008 when the white community succeeded in organizing and voting as a block and hijacking the school district and raping it, looting it for the benefit of the private schools.

Donna:

In New York, you’re allowed to spend taxpayer money to support special ed programs for private schools, and provide books for private schools, and busing for private school kids. What this white school board has done is hijack huge chunks of the funds for public education and siphon them off into the white private schools. If this were happening in South Carolina or in Mississippi or Alabama, everybody would be shocked. It’s happening 40 miles north of New York City in Rockland County, and the governor, the state legislature, the state education department have done nothing to stop it. It’s a situation that, in a moment when we’re all saying, “Black lives matter,” it’s time for our state government to say, “Enough is enough,” and to stop condoning this remarkably racist and inhumane treatment of public school kids in East Ramapo.

Donna:

There are other examples of this happening in other school districts around the state, not a lot, but this is a blight on the people of New York that this is happening in our name. I don’t know, honestly. Everybody in Rockland County knows about this. Nobody in NYC knows about it because the newspaper of record, if it’s still the newspaper of record, the New York Times, has failed to cover it. The mainstream media has failed to cover it. It is unthinkable that this should be going on in such a blue state, in such a progressive state that claims that black lives matter to us.

Vanessa:

Donna, I know we are swiftly running out of time, and I don’t want to hold you longer than I promised you I would, but I have one final question. It’s related to this idea of freedom. I’ve been thinking a lot about contact tracing. Amazon had some AI technology that they decided to hold off at least for a year before selling to police departments. I live in Westchester County, and I was riding by a sign in Rye, New York, which is where Rye Playland is. It said they were open. It was open for residents only. Please have a mask and have ID. I don’t ever recall going to an amusement park where we had to show ID. We know that this is all because of COVID.

Vanessa:

I’m just wondering are you all looking or thinking about any specific violations of rights around the way people are policed or governed or treated? I had read an article a while ago that talked about there could be a possibility where we’d have arm bands to show the last time we’ve been tested or… Somebody who was a futurist, I believe, was thinking through a couple of examples of what the world could look like in the future to make sure that people are safe. That worries me because I think about is this a way to withhold things or govern people of color in different ways? It instantly reminded me of this idea of freedom papers where black people were-

Donna:

[crosstalk 00:33:45]-

Vanessa:

… free to go or not go in certain areas. Are you all thinking about the civil liberties aspect of… under the guise of protection. I totally believe we need to be protected and we need to be very safe and careful and cautious around how we do interact and move around our cities and states and country overall, but I also want to make sure that it is not an opportunity or an excuse to take away freedoms for specific populations of people and would love to know your thoughts on that.

Donna:

Yeah. I’m so glad you asked that question because I was thinking I haven’t talked about privacy, so thank you. Yeah. Yes, we are very worried about it, but we are all over it.

Vanessa:

Good.

Donna:

The one piece of good news is that the New York City Council is poised to vote. Finally, after maybe 10 years of advocacy on our part and others, they’re poised to vote on the POST Act, which would require the police department to be transparent about the technologies that it is using, and the way it’s using it, and the limitations and non-limitations on what they’re doing with the data that they’re collecting.

Donna:

On the one hand, this is like such a no-brainer. It’s about transparency so people know what’s going on. Transparency is not enough, obviously, but transparency is essential to accountability and reining them in. If they just are able to say, “Don’t worry. Trust us. We’re not going to abuse it,” which is what they’ve said, believe it or not, and I have a bridge to sell you… I think transparency is essential. It’s important. It’s what got us [inaudible 00:35:32] by the way. That’s finally teed up and ready to go.

Donna:

Another piece of good news that we have been working hard on is legislation that either has been… I think it’s been introduced by Gustavo Rivera, who’s the chair of the health committee, to prohibit the use of any data collected for public health purposes for anything but public health purposes and the scrubbing of any identifying information about that data unless it’s essential for and to the extent it’s essential for contact tracing. There’s a really strong piece of legislation in Albany that we’re pressing hard for and that’s really timely and we’re hopeful we can get through when the legislature comes back after the primaries.

Donna:

Those are examples of short-term things that we’ve… The legislative process takes a long time, and it needs to be deliberative, but this is an example of legislation that he and, I think, Senator Biaggi been working on as well, a need to get through now if we’re going to make contact tracing something that is remotely acceptable to New Yorkers.

Donna:

I agree with you what you said. We have to engage in public health practices that will stop the pandemic. That requires some giving up of our liberties. Social distancing is giving up some liberty, and contact tracing is giving up some liberty, but when it’s narrowly tailored and when there are clear limits that are enforced about the use of information, then you can build the trust that’s necessary for people to give up the information that’s essential to stemming the spread. You can actually achieve the public health purposes with a limit with the least possible interference with privacy and without the lasting privacy transgressions.

Donna:

Those are some of the things that we’re thinking of and that are critically important and will be critically important. I should say that the privacy issues are in play also with regard to the census. The census is important. It’s critically important because it’s about allocation of government resources per capita, so people have to be counted for that, and it’s important because it determines the allocation of political representation in Congress and at the state levels, but people are reluctant. Some people are reluctant to fill out the census because they worry about being caught by or harassed by government.

Donna:

The point I want to make about it is that, actually, there are privacy protections built into the census apparatus that the Trump regime has tried to assault and scare people about, and it’s a crime to use census data for anything but the census. I think that’s a message for people that everybody should be filling out the census. Everybody’s who’s eligible to vote should be registering to vote. There’s no election in our lifetimes and perhaps in the lifetimes of our children and grandchildren as important and what’s coming up in November. That’s at the top of the tickets and way down the ballot.

Donna:

There’s lots more to talk about. I can keep you for another two days. There’s stuff I haven’t talked about with regard to education, privacy, environmental justice, and the like.

Vanessa:

Well, that’ll just be an excuse for me to ask you to come back.

Donna:

Oh, I’d be happy to, yeah. The NYCLU, nyclu.org, and the ACLU, aclu.org, we’re in the middle of all this. We’re all figuring this out together. This is the most painful and traumatic moment in my lifetime, but it’s also, I think, a moment of enormous potential, and so we have to be up to it and make the change that will stand us in good stead for our lifetimes and for our children. Thanks.

Vanessa:

Donna, thank you so, so much for sharing your insights and just giving us lots to think about. I appreciate you and the work that you do along with your team at NYCLU and look forward to continuing this conversation in the future.

Donna:

Thanks so much. It’s good to talk to you.

Vanessa:

I found the conversation with Donna to be so informative. She’s such a wealth of knowledge around policies and laws but also just the historical context and why it’s important to this moment in our current history. I thank Donna again, and I thank you all for listening to this episode. If you enjoyed it, I as that you please go to iTunes and leave a review and share. Tell all your family and friends about The Social Change Diaries. Hopefully, they’ll catch a listen as well. Thank you until the next time.